Castano & Castano
[2023] FedCFamC2F 1104
•29 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Castano & Castano [2023] FedCFamC2F 1104
File number(s): MLC 8121 of 2022 Judgment of: JUDGE GLASS Date of judgment: 29 August 2023 Catchwords: FAMILY LAW – PARENTING – whether Father with stimulant use disorder in sustained remission presents an unacceptable risk of harm to eleven year old child Legislation: Australian Passports Act 2005 s11(1)(b)
Family Law Act 1975 (Cth) ss 13C, 60B, 60CA, 60CC, 61DA, 65Y
Cases cited: Adamson & Adamson (2014) FLC 93-622
Cao & Cao (2018) FLC 93-880
Carlson & Fluvium [2012] FamCA 32
CDJ v VAJ (1998) 197 CLR 172
Darmadi & Binjori (2023) FLC 94-136
Eastley & Eastley (2022) FLC 94-094
Flora & Flora [2012] FamCA 493
Fox v Percy (2003) 214 CLR 118
Grier & Grier (2023) FLC 93-135
Isles & Nelissen (2022) FLC 94-092
Keane & Keane & Anor (2021) 62 Fam LR 190
Maclean & Greenwood (2022) FLC 94-117
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-304
Oberlin & Infeld (2021) FLC 94-017
Oswald & Karrington (2016) FLC 93-726
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 105 Date of last submission/s: 16 August 2023 Date of hearing: 14 – 16 August 2023 Place: Melbourne Counsel for the Applicant: Mr McIvor Solicitor for the Applicant: Forte Family Lawyers Counsel for the Respondent: Mr Hutchings Solicitor for the Respondent: Garland Hawthorn Brahe Lawyers Counsel for the Independent Children's Lawyer: Mr Allen Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 8121 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CASTANO
Applicant
AND: MS CASTANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
29 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged with respect to X born in 2012.
2.Subject to the conditions in paragraph 3, the Mother have sole parental responsibility for the child X born in 2012.
3.Before the Mother makes any major long-term decision concerning the care, welfare and development of the child, she shall notify the Father of her proposal, including details of schools to be considered and the names and addresses of medical and other health professionals to whom the child is being referred and give him at least fourteen days to consider his position and respond. If the Father responds within fourteen days, the Mother shall consider his views and advise him of either her acceptance or rejection of his views and her relevant reasons. If an urgent decision is required the Mother will notify the Father of her proposal and the reason for the urgency, and request that he respond on an urgent basis.
4.X live with the Mother.
5.Until the conclusion of Term 3 2023, X spend time and communicate with his Father each Thursday from the conclusion of school to 7.15pm or such other period of afterschool hours on Thursdays to 7.15pm which can be accommodated by the supervisor, with such time to be supervised by B Contact Service, save that the supervisor is not required to supervise the collection of X from school by his Father, but must be arranged by the Father to be in attendance within 15 minutes if the Father has collected X from school.
6.Each parent do all acts and things necessary to meet (or communicate at the discretion of the psychologist) with X’s psychologist prior to late 2023 to ensure there is a shared understanding of X’s psychological and emotional needs and that both parents are providing reassuring messages to X, if required, about the transition to unsupervised time.
7.During the Term 3 holidays in 2023, X spend unsupervised time with his Father on four occasions, for two hours on the first occasion, three hours on the second occasion and for four hours on the two remaining occasions at times as agreed between the parents and in default of agreement:
(a)Sunday 17 September 2023 from 12.00pm until 2.00pm (noting that Rosh Hashanah is 15 – 17 September 2023);
(b)Thursday 21 September 2023 from 11.00am until 2.00pm;
(c)Tuesday 26 September 2023 from 10.00am until 2.00pm (noting that Yom Kippur is 24 – 25 September 2023); and
(d)Sunday 1 October 2023 from 10.00am until 2.00pm (noting that Sukkot is 29 September – 6 October 2023).
8.Changeovers occur at an agreed place and in default of agreement, at the Mother’s residence.
9.Commencing Term 4 in 2023, X spend time with his Father in a fortnightly cycle during the school term:
(a)in week one:
(i)Wednesday from after school (or 3:00pm if a non-school day) until 7:00pm; and
(ii)Saturday from 10:00am until 2:00pm.
(b)in week two:
(i)Wednesday from after school (or 3:00pm if a non-school day) until 7:00pm; and
(ii)Sunday from midday until 4:00pm.
10.During the summer school holidays 2023 (13 December 2023 - 31 January 2024), X spend time with his Father:
(a)each Wednesday from 10:00am until 4:00pm (commencing 13 December);
(b)each alternate Friday from midday until 5:00pm (commencing 15 December 2023);
(c)each alternate Sunday from 10:00am until 4:00pm (commencing 17 December 2023);
(d)each alternate Saturday from 10:00am until 4:00pm (commencing 23 December 2023).
11.Commencing Term 1 in 2024, X spend time with his Father during school term in a fortnightly cycle:
(a)in week one:
(i)Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday; and
(ii)Saturday from 10:00am until 6:00pm.
(b)in week two:
(i)Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday.
12.During the first term school holidays 2024, X spend time with his Father as agreed between the parents and in default of agreement:
(a)Saturday 20 April 2024 and Sunday 21 April 2024 from 10:00am until 6:00pm each day; and
(b)Wednesday 24 April 2024 from 3.30pm until 3.30pm.
13.Commencing Term 2 2024, X spend time with his Father during school term in a fortnightly cycle:
(a)in week one:
(i)Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday; and
(ii)Saturday from 10:00am Saturday until midday Sunday.
(b)in week two:
(i)Wednesday from after school until before school Thursday; and
(ii)Friday from after school until 5.30pm (or 30 minutes before sundown if that is earlier).
14.During the second term school holidays 2024, X spent time with his Father as agreed between the parents and in default of agreement:
(a)Saturday 29 June 2024 and Sunday 30 June 2024 from 10:00am to 6:00pm each day; and
(b)from 3.30pm Wednesday to 3:30pm Friday 5 July 2024.
15.During the third term school holidays 2024, X spend time with his Father as agreed between the parents and in default of agreement:
(a)from 10 am Saturday until 6:00pm Sunday; and
(b)from 10am Wednesday until 6:00pm; and
(c)from 10am Friday until 45 minutes before sundown.
16.Commencing Term 4 in 2024, X spend time with his Father during school terms in a fortnightly cycle
(a)in week one:
(i)Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday; and
(ii)Friday from the conclusion of school (or 3.00pm if a non-school day) until midday on Sunday.
(b)in week two:
(i)Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday.
17.From the conclusion of Term 4 in 2024, X spend time with his Father during school holidays at times agreed between the parents and in default of agreement, X spend time with his Father:
(a)during school term holidays, in the first half from the conclusion of school or 3.30pm on Friday to 6:00pm on Sunday, and from 10:00am on Wednesday to 6:00pm on Thursday; and
(b)during summer school holidays, each alternate week from 10:00am on Friday to 6:00pm on Sunday and from 10:00am on Wednesday to 6:00pm on Thursday.
18.X spend time with his Father by agreement during Jewish Festivals, commencing in Term 4 2023, as follows:
(a)not less than one additional occasion during the Festival of Passover, with at least one occasion;
(b)at least one occasion during Shavuot, unless Shavuot falls on a weekend, in which case time will proceed as normal;
(c)at least one occasion during Rosh Hashanah;
(d)on the afternoon before Yom Kippur, with the Father to spend time with X if a school day from the conclusion of school until 45 minutes before sundown;
(e)not less than one additional occasion during the period of Sukkot/Shemini Atzeret/Simchat Torah, with at least one occasion;
(f)not less than one additional occasion during Chanukah; and
(g)at other times by agreement in writing.
19.X’s time with the Father be suspended as follows:
(a)if requested by the Mother with not less than thirty days’ notice, for a period of up to fourteen days during summer school holidays commencing 2024;
(b)on the Mother’s birthday, from midday until 4:00pm;
(c)on the child's birthday, from 9:00am until 1:00pm; and
(d)on Mother's Day.
20.Notwithstanding any other Order, X’s time with the Mother be suspended and X spend time with the Father as follows:
(a)on the Father’s birthday for 4 hours as agreed;
(b)on the child’s birthday for 2 hours as agreed; and
(c)on Father’s Day for 4 hours as agreed.
21.X communicate with the Father by FaceTime or telephone at any other reasonable time in accordance with X’s wishes, with X to initiate the call and the Mother to facilitate the same.
22.From the time that he attains the age of 17 years, X be permitted to spend time and communicate with his Father in accordance with his wishes, and the Father must ensure that X notifies the Mother of his whereabouts.
23.The Father is to undertake a supervised hair follicle test through a workplace drug testing service in late 2023 and in early, mid and late 2024 and each year thereafter and for this purpose the Father:
(a)must maintain his head hair length at not less than 3.9 cm for the purpose of providing a sample; and
(b)must not bleach, dye or otherwise alter his hair during the period of testing; and
(c)must attend at an authorised collection service to provide the sample; and
(d)is wholly responsible for the costs of the sample collection, analysis and reporting; and
(e)must provide a copy of the results to the Mother and these orders authorise the testing service to send the results directly to the Mother at a nominated email address.
24.Within 24 hours of receiving a written request from the Mother sent prior to 1.00pm on any day, and no more than once every two months, the Father must undergo a supervised urine test for the detection of illicit substances by an accredited collection and pathology service compliant with AS/NZS 4308:2008 and the Father is responsible for the costs of such collection and analysis and providing a copy of the results to the Mother.
25.Any urine test undertaken by the Father is to be random and supervised and if possible, prior to testing he is to be inspected for the presence of any artificial devices and any synthetic urine samples.
26.If the Father fails, refuses or neglects to comply with Orders to provide hair follicle and urine tests, or in the event the Father returns a positive hair follicle or urine test for illicit substances, or he otherwise provides evidence that he has suffered a lapse or relapse, then X’s usual time with him in accordance with these Orders shall be immediately suspended until such time as the Father is able to produce a clean hair follicle test, or the parties are otherwise satisfied that time should recommence in accordance with the usual operative Orders.
27.If paragraph 26 above becomes operative, X will spend time and communicate with his Father as agreed between the parents and in default of agreement on a professionally supervised basis.
28.If the parents are unable to agree upon the interpretation of arrangements pursuant to these Orders or in the event time has ceased in accordance with the Orders, and the parents cannot agree upon re-implementation of arrangements for X to spend time with his Father, each parent do all acts and things necessary to engage one of the following at the Father’s expense, with the choice of practitioner in default of agreement based on the earliest available to assist;
(a)clinician/therapist at C Therapy Centre nominated by the practice manager of that centre; and
(b)D Psychology Centre; (Ms E and Mr F).
29.The parties are permitted to provide a copy of these Orders, the Court’s reasons published this day, together with Ms G’s reports, to any practitioner appointed in accordance with the preceding paragraph.
30.The Father is to continue to attend upon his treatment team of Dr H and Ms K at a frequency recommended by them.
31.The Father is to comply with all reasonable directions of his treating psychiatrist and psychologist.
32.Should the Father relapse, he must notify the Mother as soon as practicable or authorise a professional service or medical practitioner to do so.
33.The Father must authorise a letter at his expense from his treating psychologist Ms K and treating psychiatrist Dr H, as to the Father’s compliance with his mental health treatment plan (including attendance at appointments and compliance with taking medication) and continued drug use remission, to be provided directly to the Mother from the practice on a quarterly basis commencing late 2023.
34.The Father is responsible for the cost of any letter of report provided in accordance with paragraph 32.
35.The Father must keep the Mother notified of his treating practitioners’ details, namely the details of his GP, treating psychiatrist, and treating psychologist (if there is one). Any change must be notified to the Mother within 7 days of any change.
36.The Father be permitted to attend any school events normally attended by parents, provided that he remain at least 10 metres from the Mother at all times while at any such event and does not attempt to approach the Mother or otherwise attempt to engage with her, unless agreed prior to the event in writing.
37.The Father is authorised and permitted, at his expense, to have access to information from the child’s school usually provided to parents including copies of school photographs and order forms, newsletters and school reports and is permitted to attend alone at parent teacher interviews arranged at a separate time to the Mother.
38.The Mother and Father notify the other as soon as possible of any significant or serious illness or injury suffered by X when in their care.
39.Unless in the case of an emergency, the parties communicate only using a messaging app unless otherwise agreed, with such correspondence to be in relation to children and parenting arrangements only.
40.Each party shall notify the other of any change of address and contact telephone number within 48 hours of such change.
41.The Mother continue to be permitted to apply for and obtain the issue of Australian passports (an Australian Travel Document) for the child X born in 2012 and any need for the Father to sign a Child Passport Application consenting to the issue of Australian Passports to the said child be dispensed with.
42.That the child X born in 2012 be permitted to travel internationally as provided by s11(1)(b) of the Australian Passports Act 2005.
43.Pursuant to section 65Y of the Family Law Act 1975, the Mother be authorised to remove the child X from the Commonwealth of Australia for the purposes of overseas travel provided the following conditions are met:
(a)no less than 30 days prior to any proposed overseas travel, the Mother provide to the Father the following:
(i)copies of final travel itinerary and return airfares for the child, including all countries of stopover or final destination; and
(ii)dates for confirmation of makeup time if any time between the child and the Father would be affected by the proposed travel and a suspension of time is not in operation as otherwise provided in these Orders.
44.The parties are restrained by injunction from denigrating, criticising, abusing or belittling the other or members of their extended families, or discussing these proceedings in the presence or hearing of the children or any of them or allowing anyone else to do so.
45.The Father is restrained from ingesting, using, handling or being under the influence of any illicit drugs.
46.The Father is restrained from being under the influence of alcohol (over .05%) or non-prescribed medication (save for medications that can be purchased over the counter and taken in accordance with direction on the packet) at any time that X spends time with him.
47.The Father is restrained from withholding from the Mother the results once available of any Hair Follicle Test he undertakes.
48.The Mother be and is hereby, by herself or her servants or agents, restrained by injunction from:
(a)discussing allegations in these Court proceedings with X;
(b)discussing the Father’s drug addiction or drug use with X;
(c)discussing any dispute between the Father and Mother with X;
(d)asking the child to relay messages to the Father; and
(e)denigrating, criticising or blaming the Father, including for any restriction in him spending time with the child, to or in the presence of the child.
49.The Father be and is hereby, by himself or his servants or agents, restrained by injunction from:
(a)discussing allegations in these Court proceedings with X;
(b)discussing his drug addiction or drug use with the child;
(c)discussing any dispute between the Mother and Father with the child;
(d)asking X to spend more time with him, including overnight time;
(e)asking X to relay messages to the Mother, including any requests for additional time; and
(f)denigrating, criticising or blaming the Mother, including for any restriction in him spending time with the children, to or in the presence of the children.
50.The parents may, in consultation with professionals involved with themselves or X, agree from time to time in writing to communicate matters to X that are otherwise restrained by injunctions in paragraph 48 and 49.
51.Each of the parties are permitted to provide a copy of these Orders made in respect of X to:
(a)any school attended by X, with a request that the Orders be kept securely and viewed only by the Principal and their designated staff member/s as required;
(b)any medical or other health professional assisting the Mother or Father or the child; and
(c)any government agency, as required, including the Australian Passport Office.
52.The Independent Children’s Lawyer is to meet with the child as soon as practicable after the date of these Orders for the purpose of explaining the effect and the purpose of these Orders, NOTING THAT Ms N may attend the meeting if she wishes to attend.
53.The Independent Children’s Lawyer be discharged after compliance with the preceding paragraph.
54.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
X is eleven years old and the subject of these proceedings. He has lived with his mother, Ms Castano, since the parties’ separation in late 2016.
It is agreed that X will continue to live with Ms Castano and she will have sole parental responsibility for him.
The essential issue in dispute is the time X is to spend with his father, Mr Castano. Mr Castano and the Independent Children’s Lawyer propose that X now spend supervised time with Mr Castano, increasing to unsupervised day time in September 2023, overnight time from February 2024 and four nights per fortnight from October 2024.[1] Ms Castano proposes that X spend supervised time with Mr Castano on eleven occasions each year.
[1] Particularised in Exhibit A3.
X has three older siblings, Mr L, aged 23, Mr M, aged 20, and N, aged 17. N will turn 18 next month and no parenting orders are sought with respect to her. Mr L, Mr M, and N live with X and Ms Castano. N currently spends time with Mr Castano each Sunday and Mr L sees his father occasionally. Prior to March 2023, N, Mr L and Mr M regularly attended Mr Castano’s house for dinner.
The parties rely on the documents referred to in their Outlines of Case, together with those documents tendered into evidence during the hearing.
Central to this determination is the extent to which Mr Castano poses a risk to X’s welfare as a result of his illicit substance abuse. It is not disputed that he has previously abused illicit drugs and substances.
Ms Castano submits that I should generally prefer her evidence to Mr Castano’s. I do not consider determination of the real issues joined between the parties requires such a finding, which I accordingly refrain from making.[2] That is in no way to diminish Mr Castano’s deceitful conduct. He has repeatedly lied about his illicit substance use after the parties’ separation in 2016, not only to the Court, but most importantly to the mother of his children.
[2] Adamson & Adamson (2014) FLC 93-622 at [89]–[90], quoting Carlson & Fluvium [2012] FamCA 32 at [165]–[169].
STATUTORY FRAMEWORK
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[3] X’s best interests are the paramount consideration.[4] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
PRIMARY CONSIDERATIONS
[3] Family Law Act 1975 (Cth), s 60B.
[4] Family Law Act 1975 (Cth), s 60CA.
The benefit to X of having a meaningful relationship with both of his parents
It is uncontroversial that X benefits from his meaningful relationship with Ms Castano and will continue to do so, by primarily living in her care.
In issue is the extent to which X will have the opportunity to benefit from a meaningful relationship with Mr Castano. Whilst meaningful in this context is a qualitative adjective and not a strictly quantitative one,[5] there is a marked difference between X having the opportunity to spend substantial time with his father each week, and being able to spend only professionally supervised time with his father once during each school holiday period and on seven special occasions each year.
[5] Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-304 at [115] and [121].
Ms G, psychologist and Family Report writer, gave oral evidence that Ms Castano’s current proposal for X to spend supervised time with his father for several hours on eleven occasions each year is restrictive. She describes it as affording X some maintenance of his relationship with his father, but she would not anticipate that relationship developing or growing.
Ms G gave oral evidence that there is a risk the relationship may not be maintained if Ms Castano’s proposal were adopted. In that event, she considers X may feel he does not have his father involved in his life and may not be able to psychologically individuate from Ms Castano during adolescence. She opines that children have a greater capacity to move from dependence to independence with both parents actively involved in their lives. Nevertheless, Ms G observes that for children to move from dependence to independence they need one really strong relationship, which X has with Ms Castano.
Ms G also gave oral evidence that the supervision of time has restrictive elements, particularly as children age. She considers that older children will query the presence of an independent person, and it can create a climate of risk, creating a perception for the child that the independent person needs to be present in order to have a relationship with their parent. Accordingly, she considers supervision will potentially dilute and diminish the strength and quality of the parent-child relationship.
Ms G also opines that adolescent children do not like supervision arrangements, and noted that she has not encountered a case where supervision by an independent agency has persisted beyond the age of about 13 years. Ongoing supervision would, in Ms G’s opinion, locates X’s relationship with his father in a more vulnerable scenario, giving X frequent reminders as he moves through adolescence that there is something about his father that is not safe.
Ms G gave oral evidence that in order for X’s relationship with his father to prosper or flower, it will require X spending regular and extended time with his father, increasing in time and frequency, moving from highly structured to unstructured. Conversely, on Ms Castano’s proposal, Ms G opines there will probably be no prospect of significant growth in that relationship.
Ms G’s oral evidence is significant in the context of her report dated 9 December 2022, that X’s bond with his father “is only recently developed and has not been enduring”.[6] There had previously been periods of time where X had not seen his father and other periods when they spend limited supervised time together. Ms G now agrees that there is some fragility in X’s relationship with his father, and notes that fragility may have increased because of the recent disruption to their relationship. X’s time with his father was again suspended from March until July 2023.
[6] Affidavit of Ms G filed 31 January 2023 (“Family Report”), annexure G1, paragraph 33.
Ms Castano submits, and I accept, that because there is a risk of Mr Castano lapsing into illicit substance use, there is a risk of further disruptions to X’s time with his father. Ms G opines that Mr Castano is at high risk of relapse, and Mr Castano’s treating psychiatrist, Dr H, opines that any individual who has a history of substance misuse is at risk of relapse. The orders proposed by all parties would suspend X’s time with his father in the event of a relapse and resume only on a supervised basis in the event of a subsequent clean hair follicle test unless otherwise agreed.
Ms G opines that in the event X is spending the time with his father as proposed by Mr Castano and the Independent Children’s Lawyer, the consequences of a relapse would be more disruptive for X than if Ms Castano’s proposal was adopted. She considers it would undermine the progress and effort that X has put into his relationship with his father. She also opines that it would negatively impact upon X’s trust in his father.
Ms Castano indicates that if her proposal is adopted, she will contemplate extending X’s time with his father in the future. I accept Mr Castano’s contention that I cannot have confidence that will occur in a reasonable time frame given her current restrictive position advanced to the Court. Ms Castano gave evidence that X is happy with the current weekly visits with his father, yet she proposes to reduce them to an average of one visit per month. She also gave evidence that she envisages supervision probably lasting for at least two years, and possibly as much as three or four years.
In effect, Ms Castano’s position is that X’s time with his father ought not now be extended, in part, because there is a risk it will be disrupted by another lapse by Mr Castano. That is not a position supported by Ms G. It will clearly deprive X of the possibility of having a meaningful relationship with his father in the foreseeable future. That consequence is of particular significance given the fragility in their relationship.
I am not satisfied that Ms Castano’s proposal will afford X the opportunity to benefit from a meaningful relationship with both of his parents. Conversely, the proposal of the Independent Children’s Lawyer and Mr Castano, with its gradual introduction of extended time between them, will afford X such an opportunity.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This consideration is to be given greater weight than the first primary consideration.[7]
[7] Family Law Act 1975 (Cth), ss 60CC(2A).
The relevant risk is said to essentially arise due to Mr Castano’s illicit substance abuse. Risk assessment requires the identification of the nature of the risk, assessment of its magnitude and a determination of whether the risk posed is unacceptable.[8] Risks of harm are not susceptible to scientific demonstration or proof, but are instead postulated from known facts and circumstances.[9]
[8] Oswald & Karrington (2016) FLC 93-726 at [60] and the cases there cited; Darmadi & Binjori (2023) FLC 94-136 (“Damardi & Binjori”) at [26]–[27] and the cases there quoted.
[9] Isles & Nelissen (2022) FLC 94-092 at [7] citing CDJ v VAJ (1998) 197 CLR 172 at [151].
Illicit drugs use
Mr Castano commenced using illicit drugs around the time of his fortieth birthday in 2009. His use escalated over time to the point where he told Ms Castano in around early 2015 that he had developed a $3,000 per week drug addiction. In 2018, Mr Castano’s mental state deteriorated such that he was admitted to a psychiatric ward for a fortnight later that year. Ms O, clinical neuropsychologist, opines that Mr Castano previously satisfied the diagnosis for a “severe Stimulant Use Disorder (illicit drugs-type)”.[10]
[10] Affidavit of Ms O filed 7 August 2023, annexure O3, paragraph 73.
Mr Castano gives evidence that in the last couple of years of his marriage with Ms Castano, his “parenting was compromised”,[11] and that when he was using illicit drugs, he “did not have the capacity to be an effective parent”.[12] I consider Mr Castano’s evidence understates the impact of a substantial drug addiction on his capacity to parent. The deterioration of his mental state, ultimately to the point of hospitalisation, would have left the children at risk of at least neglect had they been in his care. He admits that his behaviour was “unpredictable, threatening and inappropriate”,[13] and that he criticised, demeaned and called Ms Castano names. I conclude that while abusing illicit drugs, his behaviour exposed the children to episodes of family violence.
[11] Affidavit of Mr Castano filed 24 July 2023, paragraph 17.
[12] Affidavit of Mr Castano filed 24 July 2023, paragraph 26.
[13] Affidavit of Mr Castano filed 24 July 2023, paragraph 22.
It is Mr Castano’s evidence that he ceased using drugs in late 2018. He also gives evidence of having lapsed on one occasion in late 2022. Mr Castano was challenged about the veracity of his evidence that he only abused drugs on one occasion in late 2022. He repeatedly rejected any contrary suggestion.
Dr P, pharmacologist and forensic toxicologist, opines that Mr Castano’s hair follicle tests are more likely to be consistent with repeated uses around late 2022, but he is unable to exclude the possibility of the results being explained by a single, higher dose, use. He gives evidence that if “the drug was only used on a single occasion, it is likely that the amount ingested to result in the hair drug concentrations reported was significant insofar as it was likely the equivalent of a few “recreational” doses.”[14]
[14] Affidavit of Dr P filed 11 July 2023, annexure P4, paragraph 4.4.
Mr Castano gave evidence that he purchased a bag of illicit drugs and consumed it before disposing the balance of the bag. He estimates he ingested around half the bag. Dr P gave oral evidence that a bag of illicit drugs likely contains 10 to 12 recreational doses, and accepted that Mr Castano’s evidence of use likely amounted to a few recreational doses.
Relying on Dr P’s evidence, Ms Castano submits that I should find that it is more likely than not that Mr Castano used illicit drugs on multiple occasions in or around late 2022. I am not so satisfied. In circumstances where Dr P was unable to exclude Mr Castano’s evidence as an explanation for his hair follicle testing results, there is no direct conflict between their evidence. Absent contradictory evidence, I decline to reject Mr Castano’s evidence about his drug use in late 2022.
Mr Castano’s evidence is that, aside from his lapse in late 2022, he has been abstinent from illicit drugs. That evidence was not successfully impugned. It is supported by hair follicle tests and urine drug screens he has produced which have otherwise been negative for illicit drugs. I accept Mr Castano’s evidence that he has not abused drugs since late 2018, other than in late 2022. Ms O opines that he has met the diagnostic criteria for “Stimulant Use Disorder (illicit drugs-type) in sustained remission”[15] for nearly four years in spite of his brief relapse.
[15] Affidavit of Ms O filed 7 August 2023, annexure O3, paragraph 73.
Cannabis use
Mr Castano gave evidence that he used marijuana prior to the parties’ relationship from his early twenties until the age of 29. He has subsequently used cannabis. It was detected in his system in late 2017. In 2017, Mr Castano had also been using synthetic urine to avoid detection of other drug use. Mr Castano gives evidence he did so while he considers he was still an addict, given he places his date of sobriety from illicit drugs as late 2018.
Mr Castano told his support group in late 2019 that he had purchased and used cannabis on one occasion. I accept the accuracy of that contemporaneous material rather than Mr Castano’s evidence on the topic which was replete with inconsistency.[16]
[16] Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”) at [31] per Gleeson CJ, Gummow and Kirby JJ.
Mr Castano also used cannabis in 2020. He ultimately conceded that he used on two occasions in mid-2020. His evidence on the topic was generally evasive. He initially claimed to have only used once in that period until his evidence was contradicted by contemporary materials.
In late 2020, Mr Castano lied to Ms Castano about his cannabis use earlier that year. He told her that had smoked “a joint” a few months ago.[17] He falsely told her that he was seeing Dr H “every two weeks after it happened (now back to 4 weeks)”.[18] He never told his support group at hospital that he had smoked cannabis that year.
[17] Affidavit of Mr Castano filed 24 July 2023, annexure C5, page 123.
[18] Affidavit of Mr Castano filed 24 July 2023, annexure C5, page 123.
Ms Castano submits that I should also find Mr Castano used cannabis in 2020 on other occasions. Dr P opines that a single joint would be unlikely to explain a positive hair follicle test result for marijuana use, and that, depending on concentration, he expected it would have to be around half a dozen uses over a one month period. However, the relevant test results were not put to Dr P.
Mr Castano was asked whether he had been using cannabis more than twice at the relevant time, to which he responded in the negative. It was not suggested to Mr Castano that he had used half a dozen times around mid-2020. Whilst I have doubts about the veracity of Mr Castano’s evidence on the topic of his cannabis use in 2020, I do not feel an actual persuasion that Mr Castano used cannabis on more than two occasions during that period.[19] I accordingly do not conclude that Mr Castano used cannabis more than twice in 2020.
[19] Keane & Keane & Anor (2021) 62 Fam LR 190 (“Keane & Keane & Anor”) at [73] and the cases there cited.
Mr Castano used cannabis in early 2021 in his business premises. His evidence on the topic bordered on the fanciful. He gave evidence that staff at his business stored cannabis for their own consumption, and that Mr Castano had commenced using cannabis that was stored on the premises. He gave evidence that the staff there told him to stop. In early 2021, his progress notes at J Hospital state the following:
[Mr Castano] disclosed [using cannabis at his business premises]. [Mr Castano] initially stated being unaware of his behaviour pre-lapse, but with challenging was able to identify self-sabotage attitude. [Mr Castano] was uncomfortable with being challenged + rationalized his use episode. To focus on early relapse warning signs and self-compassion.[20]
[20] Exhibit R6.
I accept Ms Castano’s submission that the J Hospital notes are inconsistent with Mr Castano inadvertently consuming a marijuana. Relying again on the contemporaneous materials, I find that Mr Castano’s consumption of cannabis in early 2021 was not inadvertent.[21]
[21] Fox v Percy at [31] per Gleeson CJ, Gummow and Kirby JJ.
Risk of Mr Castano being drug-affected whilst caring for X
Ms Castano effectively submits that X’s risk of exposure to abuse or neglect derives from Mr Castano being drug affected at or around the time X is in his care. She submits that if Mr Castano is “drug affected, there is a clear risk to [X] in terms of being in his father’s care, particularly unsupervised”. I accept that were Mr Castano to be drug affected whilst caring for X, he would expose him to a risk, at least of neglect. I am accordingly called to evaluate the risk of Mr Castano being drug affected when caring for X.
There is no evidence of Mr Castano having been drug affected at any time the children have been in his care since 2019. No such suggestion was made to Mr Castano. As Ms Castano concedes, I cannot be satisfied that Mr Castano has been drug affected whilst caring for the children since that time. I also do not have any enduring suspicion that Mr Castano has been drug affected while the children have been in his care, which could be taken into account as part of the matrix of evidence on which a finding of unacceptable risk can be premised.[22]
[22] Eastley & Eastley (2022) FLC 94-094 at [31] (“Eastley”).
Ms Castano submits that I cannot know when Mr Castano has been drug affected over the past three to four years. However, as I have observed, risks of harm are postulated from known, rather than unknown facts.
Ms Castano also submits that “it’s going to be a real stretch on the evidence (…) to suggest that because there is no evidence he has been drug affected around the children, that therefore there is no risk in terms of his drug taking behaviour”. With respect, that submission misstates the relevant legal enquiry. There is a difference between the risk of some occurrence and an unacceptably high risk of the same occurrence, with the former being tolerable whilst the latter is not.[23]
[23] Cao & Cao (2018) FLC 93-880 at [36].
Ms Castano concedes that there is no evidence capable of linking a time when Mr Castano has been drug affected with a particular incident of risk in the relevant sense. As Ms G opines, there is an absence of evidence of direct risk.
Ms Castano nevertheless submits that the risk to X is that, “this is a man who cannot control his drug taking behaviour”. I reject the submission. Ms O’s unchallenged opinion in relation to Mr Castano’s late 2022 lapse, is that Mr Castano, “demonstrated that he had applied some element of satisfactory reasoning to his decision to use [illicit drugs] on this date, in that [X] was overseas and consequently safe from the potential outcomes of his [illicit drugs] use in that moment and the near future”.[24] I accept that Mr Castano, even during his lapse, was able to ensure that X was kept safe.
[24] Affidavit of Ms O filed 7 August 2023, annexure BH3, paragraph 81.
What is significant, is the absence of any identified harm in the relevant sense from Mr Castano’s singular lapse of illicit drugs use in late 2022, or occasional other ingestion of cannabis in 2019, 2020 and 2021. I accept Ms G’s opinion that there is no suggestion of any such direct harm.
I am not satisfied that the known facts and present circumstances support a conclusion that there is an unacceptable risk of Mr Castano being drug affected whilst caring for X.
Ameliorating Factors
Even had I found there to have been an unacceptable risk of Mr Castano’s drug use exposing X to harm in the relevant sense, a question would then arise as to whether any preconditions could sufficiently ameliorate that risk.[25]
[25] Darmadi & Binjori at [24]; Keane & Keane & Anor at [84].
Mr Castano’s uses of illicit substances were in breach of final consent Orders made 16 December 2019. He also breached those Orders by failing to advise Ms Castano of those uses. As the Independent Children’s Lawyer urges, I condemn his lack of disclosure. Decisions have been made both by Ms Castano and the Court on the basis of false representations made by Mr Castano about his illicit drug use, the central issue in these proceedings. I accept Ms Castano’s submission that there is a high likelihood that Mr Castano will conceal future lapses.
It is common ground that Mr Castano will undertake quarterly hair follicle tests for the next four years. Ms Castano proposes that he continue to do so until X is 18 years old. In circumstances where Mr Castano lapsed into illicit drugs use after four years of abstinence, and thereafter concealed his use for several months, I am satisfied that it is in X’s best interests for such testing to be undertaken until he is an adult. However, I prefer the form of order proposed by the Independent Children’s Lawyer and Mr Castano in the absence of any evidence or submission supporting the additional conditions sought by Ms Castano.
Ms Castano proposes that Mr Castano also be required to undertake a urine drug screen within 24 hours of receiving a request from her on no more than one occasion every two months. I also consider that proposal to be in X’s best interests given Mr Castano’s concealment of his drug use contrary to Court Orders. It will mean that Ms Castano can immediately cause to have investigated any concerns she has that Mr Castano has relapsed and suspend X’s time with him if necessary.
Whilst there is certainly some risk Mr Castano will again seek to disguise any urine screens, his previous attempts were ultimately detected, reducing the likelihood that any future anomalies will remain undetected.
What would certainly result in an unacceptable risk of relevant harm to X, is a relapse by Mr Castano into regular drug abuse. However, such a relapse would be relatively immediately detected by either a positive urine screen, or a failure to undertake such a screen. In the more medium term, it would be detected by the hair follicle test. The consequence of any of those outcomes would be an immediate suspension of time on all parties’ proposals. Importantly, they do not rely on Mr Castano disclosing any relapse. I am satisfied that the drug testing and treatment regime proposed will sufficiently ameliorate any unacceptable risk of X being exposed, or subjected to, abuse, neglect or family violence.
In late 2022, Ms G opined that the presence of X’s older siblings at Mr Castano’s home provided a significant degree of oversight. Ms Castano submits that such oversight is now unavailable. Certainly the older children are spending less time with Mr Castano than previously, however, they are still seeing him regularly. They are aware of his illicit drugs lapse in late 2022. Were Mr Castano to relapse into regular drug abuse, it is most unlikely he would be able to successfully conceal it from them. I am not satisfied that the reduction in the older children’s time with their father substantially increases the risk of Mr Castano being drug affected around X undetected.
Mr Castano’s illicit substance consumption has occurred despite his significant drug and alcohol rehabilitation. The evidence suggests he will remain at risk of relapse. He has extensively engaged with professional supports in relation to his drug abuse. Whilst he has not always been candid with those supports in relation to his usage, he has demonstrated a commitment to his attendances upon them and has been strongly compliant with his treatment and management plan. He proposes to be bound by Orders that he continue to do so, affording him further supports to reduce the risk of relapse.
Other risks identified by Ms Castano
Ms Castano submits that Mr Castano’s encouragement of Mr M bringing marijuana smoking paraphernalia to his house amounts to poor decision-making and is relevant to this statutory consideration. I reject the submission. The evidence does not support a finding that X was exposed to abuse, neglect or family violence as a result of his older brother storing drug paraphernalia at his father’s house. Mr Castano’s oral evidence that he never saw Mr M smoke in his house was not challenged.
Ms Castano submits that another risk is Mr Castano’s concealed storage of a part-consumed marijuana joint for a girlfriend in his freezer earlier this year. She submits it amounts to lackadaisical parenting and increases the likelihood of X using drugs in the future. I am not satisfied that it amounts to a risk of X being exposed or subjected to abuse, neglect, or family violence.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as his maturity or level of understanding) that are relevant to the weight to be given to X’s views
X was interviewed by Ms G in November 2022. Pursuant to interim Orders made 29 August 2022, X was then spending overnight time with his father each Wednesday, and for day periods on alternate weekends and on alternate Tuesday afternoons. He then told Ms G he, “wanted to see his father more and expressed some confusion about why this couldn’t happen”.[26] He told Ms G that he had stayed with his grandparents when his mother had been on holiday, but that he had wanted to stay with his dad. Ms G opined that X’s expressed view appeared “to be based on a lived experience, and not overly influenced by one parent’s narrative” and indicated “a desire to spend more time with his father”.[27] Ms G’s evidence in those respects was not challenged and I accept it.
[26] Family Report, paragraph 28.
[27] Family Report, paragraph 31.
In early 2023, following the disclosure of Mr Castano’s late 2022 illicit drugs lapse, X’s time with his father was suspended and resumed only on a supervised basis in July 2023. Having read the supervision report, Ms G opines that X would likely be now wanting to spend more time with his father. She also anticipates that he would want to move to overnight time. She considers he might have a sense of disappointment if his time with his father was to reduce. If Ms Castano’s proposal were adopted, Ms G opines that whilst X would benefit from the proximity to Mr Castano and the interaction itself, X would wonder why it was only occurring on that limited basis.
The nature of X’s relationships with each of his parents and other people, including any grandparent or other relative
X told Ms G that Ms Castano is the “best Mum” and he “wouldn’t change anything about her”.[28] Ms G opines that X’s views would indicate a “secure and loving relationship with his mother”.[29] She referred in oral evidence to the strength of X’s relationship with his mother.
[28] Family Report, paragraph 28.
[29] Family Report, paragraph 32.
X told Ms G in late 2022 that his father is a hard worker and is confident in X’s ability. Ms G reports that X “placed value on his father’s abilities, and he looked up to him.”[30] I have referred to her opinion in late 2022 that X’s bond with his father “is only recently developed and has not been enduring,”[31] and her oral evidence that there is some fragility in the relationship.
[30] Family Report, paragraph 28.
[31] Family Report, paragraph 33.
X is recorded as having told his father he loved him during a supervised visit in August 2023. Ms Castano agreed that X and his father have a close and affectionate relationship and gave evidence that X loves his father.
None of that evidence was challenged, and I accept it.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to him, to spend time with him, and to communicate with him
In April 2017, interim Orders providing for Mr Castano to spend unsupervised time with the children were suspended as a result of his provision of a positive urine drug screen. Mr Castano agreed in cross-examination that he thereafter didn’t agree to spend supervised time with the children, with the result that they spent no time with him. In November 2017, further interim Orders were made providing for the children to spend supervised time with Mr Castano. Mr Castano thereafter refused to spend any such supervised time with the children until March 2019.
Mr Castano’s absence from his children’s lives for those extended periods of time reflects poorly upon him. His oral evidence that he was trying to not see his children to give him strength to try to beat his addiction was self-centred and lacked any insight into the effect of his conduct on the children.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain him
Mr Castano pays child support as administratively assessed, at the rate of $9.45 per week. That sum is very modest and is substantially less than previous support Mr Castano has provided for the children. However, the evidence does not suggest that he has failed to fulfil his legal obligations to pay child support.
The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom he has been living
No significant change to X’s living circumstances is proposed. He will remain living with Ms Castano and his older siblings.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
X’s parents live in close proximity to each other. It is not suggested there are any practical difficulties or expenses associated with X spending time or communicating with either parent.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for his needs, including emotional and intellectual needs
Ms Castano has been primarily responsible for X’s parenting. Prior to separation, Mr Castano was regularly absent from the home and drug affected. After separation, Mr Castano has made only modest contributions in terms of caring for X. Ms Castano has demonstrated a very considerable capacity to provide for all of X’s needs over an extended period of time.
Nevertheless, Ms Castano’s current proposal for indefinite supervised time for X had not been clearly thought through by her. When the possibility of a supervisor attending synagogue or sport with X and his father was raised with her, she thought it would be best for X to lie about the supervisor’s identity. It was clear from her evidence that she had given insufficient thought to the practicalities of her proposal for X.
Mr Castano has conducted himself in ways that have demonstrated a poor capacity to provide for his children’s emotional needs. He provided X with an iPad that had on it wholly inappropriate material, including pornographic images and photographs of illicit drugs.
Ms G’s family report was released to the parties in December 2022. In it, Ms G reported that X had expressed his worry about his father’s drug use “nearly every day”.[32] Shortly thereafter, Mr Castano chose to use illicit drugs for the first time in four years. As he conceded, his conduct did not fit well with him being the best father he could be. Indeed, that decision reflects poorly on his capacity to provide for X’s emotional needs.
[32] Family Report, paragraph 29.
Mr Castano has gratuitously criticised Ms Castano’s parenting, including X’s hygiene and bedtime routines. Without any proper basis, he has suggested that X is malnourished by Ms Castano. He has photographed X’s lunchbox in order to support his assertions. I find his criticisms to be without any basis and to reflect poorly on his capacity to provide for X’s emotional needs.
Ms G gave evidence that she did not know whether X was aware of his father’s negative views of his mother’s parenting given X did not say anything about that to her. Nevertheless, she considers there to be a risk to X’s wellbeing if Mr Castano is persistently negating of Ms Castano’s role and importance in X’s life. She conceded that if X is exposed to negative messaging by Mr Castano about Ms Castano, it may increase X’s anxiety. However, it was X’s report to Ms G that both of his parents didn’t speak positively about the other, leaving him feeling sad.
Ms Castano submits that she is at risk of being in an ongoing state of anxiety. She expressly disavows that risk as being relevant to the second primary consideration. I cannot infer merely from her concerns about X’s safety that there is an unacceptable risk of harm her parenting capacity will be adversely impacted.[33] I am required to consider whether that parenting capacity will be “discernibly impaired”.[34]
[33] Keane & Keane & Anor at [80].
[34] Keane & Keane & Anor at [81] and the cases there cited.
I accept Ms G’s opinion that Mr Castano’s late 2022 lapse and its concealment will keep Ms Castano in a state of concern and worry about how X will be parented by Mr Castano, and serves to confirm her fears in relation to his parenting and the risk he poses. Ms G is of the view that if orders are made as sought by Mr Castano and the Independent Children’s Lawyer, Ms Castano’s stress levels will be activated and increased with each changeover. She also opines that Ms Castano’s anxiety has been longstanding for her, and that Ms Castano operates in a climate of worry which reduces opportunity to promote resilience in X. The evidence does not, however, support a conclusion that Ms Castano’s parenting capacity will be discernibly impaired by X spending increasing time with his father.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other relevant characteristics of X
X suffers from a learning disorder. It requires ongoing management and monitoring. Ms Castano has been primarily responsible for supporting X’s needs in that respect. Mr Castano gave evidence he has been assisting X with his reading, which he considers to be improving.
If X is an Aboriginal child or a Torres Strait Islander child, his right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of his parents
Mr Castano accepted in cross-examination that in order for spend time arrangements to work for X, his parents need to have some form of a co-parenting relationship. He also admitted that their co-parenting relationship could be better. He expressed optimism that it could be fixed. Despite also accepting that trust has a lot to do with it, Mr Castano has repeatedly failed to engender trust in his parenting relationship with Ms Castano. He has failed to comply with previous Orders of the Court prohibiting him from consuming illicit substances, and requiring him to notify Ms Castano in the event of relapse. He conceded that Ms Castano presently has a right not to trust him.
Mr Castano also gave evidence that Ms Castano needs to be more secure about his sobriety and intentions. He gave evidence that he has had four years of sobriety. The ordinary meaning of sobriety means that Mr Castano has not been intoxicated. As has been seen, he has been intoxicated by illicit substances on a number of occasions over the last four years. Mr Castano’s ongoing deceitful conduct with respect to his drug use and its disclosure has understandably defeated any confidence Ms Castano might have in him.
Despite being the applicant in two sets of parenting proceedings in relation to his children, Mr Castano’s attitude to the Orders made by the Courts has been poor. In late 2020, after Ms Castano reminded him of the Orders during a dispute about the children’s time with him during one of the Jewish festivals, he wrote to Ms Castano “I don’t have [the orders] and don’t care for them”. He went on to say the children “love my breakfasts and it’s the kids I’m concerned about not stupid orders done over a year ago.”[35] So much reflects poorly on his attitude to the responsibilities of parenthood.
[35] Affidavit of Mr Castano filed 24 July 2023, annexure C5, page 121.
When Mr Castano initiated these proceedings, he sought that X ultimately live in an equal time arrangement with his parents. He gave oral evidence that he knew Ms Castano would never agree to such an arrangement, and that he only made the application to take some control away from her. He also gave evidence that what was best for the children was not week about, but them spending five nights per fortnight with him. Seeking relief that he did not consider to be in the children’s best interests, in a misguided attempt to take control from Ms Castano, reflects poorly on Mr Castano’s attitude to the responsibilities of parenthood.
Any family violence involving X or a member of his family
Whilst the parties’ relationship was characterised by family violence, there are no recent allegations of family violence between the parties. It was not suggested that the background of family violence had any particular relevance to the current determination. I do not conclude otherwise.
If a family violence order applies, or has applied, to X or a member of his family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
In early 2019, final Family Violence Intervention Orders were made against Mr Castano for the protection of Ms Castano, Ms Castano’s father and all four of the parties’ children for a period of five years. The Orders were made by consent without admissions of allegations made in the complaints. I am accordingly unable to draw any relevant inferences from their making.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
These proceedings are the second between the parties for parenting orders. The first resulted in Orders that provided for the then minor children to spend supervised time with Mr Castano, and subject to his provision of clear hair follicle tests, for that time to progress to unsupervised day visits. The consequence of those limited Orders was that they were not adhered to for any length of time. The children’s time with Mr Castano was extended by agreement. Ultimately, those negotiations broke down, resulting in these proceedings.
Ms Castano now proposes an indefinite order for supervision. She submits that such an order is a base from which she is able to work, and a maintenance position from which, if circumstances permit, time could grow. She gave oral evidence that if she saw fit, she would increase time. The difficulty with the position is that in the event there is a dispute about the progression of X’s time, it would likely result in further proceedings being instituted to resolve the dispute, as has already occurred.
On Mr Castano’s proposal, if he relapses into illicit substance use, there is also a risk of further proceedings. However, I consider that risk to be less in circumstances where his proposal provides for both a suspension of time until he produces a clean hair follicle test, at which point supervised time would re-commence in the absence of other agreement. Unlike Ms Castano’s proposal, Mr Castano’s proposal provides a long-term arrangement for X both in the event of his abstinence, as well as in the event of his relapse.
Any other relevant fact or circumstance
No other facts or circumstances are relevant.
PARENTAL RESPONSIBILITY
X’s parents and the lawyer appointed to represent his best interests all agree that it is not in X’s best interests for his parents to have equal shared parental responsibility for him. Despite that agreement, I am required to apply a presumption to that effect.[36] I nevertheless conclude that, given Mr Castano’s deceitful conduct and poor attitude to the responsibilities of parenthood, it is not in X’s best interests for his parents to have equal shared parental responsibility for him, with the result that the presumption is rebutted.
[36] Family Law Act 1975 (Cth), s 61DA.
The parties all agree for Ms Castano to have sole parental responsibility for X, subject to a requirement to consult with Mr Castano in relation to major long-term decisions for him. The agreement is consistent with Ms G’s opinion. I agree that such orders are in X’s best interests.
CONCLUSIONS
Ms G supports the proposal advanced on behalf of Mr Castano and the Independent Children’s Lawyer. That support was unaltered in cross-examination. I am, of course, not bound by that opinion.[37] I am responsible for considering and giving appropriate weight to the totality of the evidence.[38] Nevertheless, the failure to follow the recommendation of an expert requires some explanation and demonstration that the matters raised have been taken into account.[39]
[37] Maclean & Greenwood (2022) FLC 94-117 at [33].
[38] Grier & Grier (2023) FLC 93-135 at [88] and the cases there cited.
[39] Vigano & Desmond (2012) FLC 93-509 at [87] and the cases there cited.
Ms Castano submits that there was a “disconnect between [Ms G]’s assessment in terms of identifying and assisting the Court with evidences about the impact on [X] of various matters and her recommendations”. She submits that the recommendations “don’t appear to be justified by the analysis that [Ms G] otherwise gave”. She points to the less regular oversight now available in terms of the presence of the older children in Mr Castano’s home, which had previously featured as a safeguard in Ms G’s assessment. She also points to Ms G referring to the agreement for sole parental responsibility amounting to a safeguard in circumstances where such an Order had been made in 2019. Ms Castano otherwise suggests there is a disconnect between Ms G’s recommendation and “the impact on [Ms Castano], the high risk of relapse, the removal of the older children as being any form of safeguard, the lack of compliance and lack of honesty when it comes to compliance with orders and drug use”.
I do not accept that Ms G’s recommendations are not soundly based in the opinions she has proffered. The matters raised in submissions were all put to Ms G in cross-examination. She made appropriate concessions, including opining there is a high risk of Mr Castano relapsing into drug use in light of the illicit substances use now identified. She was asked how her recommendations take into account the high risk of relapse. She gave evidence:
Well, because, it’s not just about all of this indirect risk that those questions have been put to me. The consideration for me is also what happens for [X] and his father when they spend time together. What is the direct risk to [X] of being around his father? Now I don’t see a lot of evidence of there being direct risk in terms of his parenting, his direct parenting of [X]. There is a lot of protective factors, well, there are several protective factors, and one is the quality of the relationship between [X] and his father… What I’m saying is we need to balance the risk factors and the safety factors, or the risk factors and the protective factors. If there’s a high risk of relapse, a higher risk of relapse, my point is that the relationship should continue and we put a safety guard around it… [X] needs to try and have a good opportunity to have as normalised a relationship as possible with his father.
Ms G went on to describe safety guards in terms of supervision, X being able to more reliably report on his experience, Ms Castano having sole parental responsibility, and drug testing arrangements that are hoped to keep Mr Castano abstinent.
Ms G further opined orally that the arrangements proposed by Ms Castano will constrict, and will not travel with X’s development and his ability to self-manage arrangements.
Despite the risk of further disruption to X’s relationship with his father and Mr Castano’s deficiencies to which I have referred, I am satisfied that X will benefit from having a meaningful relationship with both of his parents, and that his relationship with his father should normalise as far as possible through increases in their time together.
I find Mr Castano and the Independent Children’s Lawyer’s proposal for X’s time with his father to be in his best interests. I consider the progression to unsupervised time during the September school holidays to be appropriate, despite the absence of a further hair follicle test before then. Mr Castano last produced a clear hair sample for a test in mid-2023.
To the extent Mr Castano’s proposal encroaches on X’s time at school camp or other activity, the specific holiday time is prescribed to be only in default of agreement. The effect is that the parties are able to make different arrangements to accommodate particular events. It was ultimately agreed that Ms Castano may suspend summer holiday time for 14 days.
Mr Castano and the Independent Children’s Lawyer propose that X have the opportunity to communicate with his father in accordance with his wishes. Given any such communication will be entirely at X’s request, I find the relief sought to be in his best interests.
Whilst the parties agreed on an order providing for the suspension of Mr Castano’s time in the event of detection of illicit substances in hair follicle testing, I consider X’s best interests are met by also extending that suspension provision to urine screening. In the event that suspension becomes operative, Mr Castano and the Independent Children’s Lawyer propose that any subsequent time between X and his father be as agreed, and in default of agreement, on a professionally supervised basis. I consider that relief sought to reduce the risk of further litigation and to accordingly be in X’s best interests.
The Independent Children’s Lawyer and Mr Castano propose that the parties engage a parenting co-ordinator at Mr Castano’s expense. Ms Castano agreed in oral evidence that she would be content for such an order to be made. It is recommended by Ms G and I consider it desirable to minimise the risk of further conflictual communication between the parties. The Independent Children’s Lawyer sought, without contradiction, that a copy of these reasons and Ms G’s reports be provided to any appointed parenting co-ordinator, which relief I find to be in X’s best interests. I am not, however, satisfied that a copy of earlier family reports should be provided to any psychologist appointed for the children as sought by Ms Castano.
The parties jointly seek orders that require Mr Castano to attend upon his psychiatrist and psychologist. As a stand-alone Part VII order, it is likely to be beyond power.[40] However, section 13C of the Act empowers the Court to make orders providing for one or more parties to participate in an “appropriate course, program or other service”. That phrase has been held to mean something other than family counselling or family dispute resolution, as those terms are defined in the Act.[41] It is suggested that “service” in this context might mean “a system of supplying a need,”[42] which would appear to include specialist mental health services addressing Mr Castano’s stimulant use disorder. Whilst the relevant statutory object suggests the power is available to require the parties to attend “family services”,[43] I am not satisfied that section 13C excludes the power to require Mr Castano to attend psychiatric and psychological treatment. If I am wrong in that conclusion, I would find that Mr Castano’s attendance for treatment ought be a condition precedent to his extended time with X in order to minimise the risk of relapse and further disruption to their relationship. I prefer the more specific and enforceable relief sought by Mr Castano and the Independent Children’s Lawyer.
[40] Eastley at [58]; Oberlin & Infeld (2021) FLC 94-017 (“Oberlin & Infeld”) at [51]–[52] and the cases there cited.
[41] Flora & Flora [2012] FamCA 493 (“Flora”) at [10].
[42] Flora at [13].
[43] Family Law Act 1975 (Cth) ss 13A(1)(d).
I consider it preferable that Mr Castano authorise a quarterly letter be sent by his treating practitioners to Ms Castano rather than relying on her making requests for the agreed reports. I also prefer his proposal for notification to Ms Castano of changes to his treatment providers, which accurately reflects their current identities.
I am not satisfied that the relief sought by Ms Castano to restrain X from being left unattended or in the care of his siblings is in his best interests. It is likely to lead to further disputation between the parties, and I consider it unnecessary for his welfare. Other relief sought by Ms Castano premised on a suggested inconsistency with a Family Violence Intervention Order was not pursued.
It is agreed that the parties will use a messaging app to communicate. Other relief sought, including providing for the exchange of information, international travel and restraints on inappropriate conduct, is agreed between the parties and I find it to be in X’s best interests. I agree with Mr Castano and the Independent Children’s Lawyer than an exception to the topics about which X is not to be exposed should be ordered in the event of agreement between the parties, in consultation with any involved professionals. I also agree that he should be restrained from withholding any hair follicle testing results from Ms Castano.
Mr Castano and the Independent Children’s Lawyer propose a notation to the Orders in relation to the parties’ intentions regarding X’s Bar Mitzvah. I decline that proposal, absent express agreement between the parties, noting also its lack of obvious judicial basis.[44]
[44] Oberlin & Infeld at [44] and the case there cited.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 29 August 2023
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