CHISHOLM & CHISHOLM

[2014] FCCA 821

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHISHOLM & CHISHOLM [2014] FCCA 821

Catchwords:
FAMILY LAW – Interim arrangements for child aged fifteen months – child lives with mother – father has history of amphetamine abuse – appropriate arrangements for father to spend time with the child – assessment of risk – responses commensurate with degree of risk arising – meaningful relationship – nature of supervision – best interests.

Legislation:

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

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
A v A (1998) FLC 92-800

Applicant: MS CHISHOLM

Respondent: MR CHISHOLM

File Number: ADC 1869 of 2013

Judgment of: Judge Brown

Hearing date: 17 April 2014

Date of Last Submission: 17 April 2014

Delivered at: Adelaide

Delivered on: 24 April 2014

REPRESENTATION

Counsel for the Applicant: Ms Dickson

Solicitors for the Applicant: SE Lawyers

Counsel for the Respondent: Ms Kari

Solicitors for the Respondent: Tindall Gask Bentley

ORDERS

UNTIL FURTHER OR OTHER ORDER

1. The child of the marriage X born (omitted) 2013 live with the mother.

2. The father spend time with the child as follows:

   (a)On each Wednesday from 3:00pm to 6:00pm;

   (b)Each alternate Sunday from 9:30am to 4:00pm; and

   (c)Each alternate Saturday from 9:30am to 4:00pm.

3. The time referred to in order 2(b) & (c) is to be supervised for the first two (2) hours of each such period by one of the following:

   (a)the paternal grandfather;

   (b)the paternal grandmother; or

   (c)the paternal aunt, Ms M.

   until 31 August 2014.

4. It is further ordered that upon the completion of the supervision specified in order (3) hereof either the paternal grandfather; the paternal grandmother; or Ms M; remain present in the residential location in which the father’s weekend time is taking place but are not required to directly supervise his time with the child until 31 August 2014.

5. Unless the parties agree otherwise the child be exchanged between the parties at the commencement of each period she spends with the father at the home of the maternal grandmother and be collected at the conclusion of each such period at the father’s residence.

6. The father is ordered to continue to engage in ongoing treatment and counselling at the (omitted) Clinic as directed by his medical practitioners and counsellors and to provide regular reports, regarding his progress, to the mother.

7. The father be restrained and an injunction granted restraining him from:

   (a)Consuming any illicit substance 24 hours prior to and during any period of time he spends with the child; and

   (b)Being under the influence of any illicit substances during any period of time he spends with the child.

8. The husband within 24 hours of being requested to do so is to submit a urine test for the screening of illicit drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ4308:2001, with the results of such testing to be made available to the wife’s solicitors as soon as they become available with there to be no more than eight (8) such requests within the period of the adjournment.

9. Further consideration of the matter is adjourned to 10 December 2014 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1869 of 2013

MS CHISHOLM

Applicant

And

MR CHISHOLM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is concerned with illicit drug abuse and the threat it potentially poses to young children and the corrosive effects it can have on the capacity of parents to trust one another. 

2. Children have an entitlement to know and be cared for by both their parents [Family Law Act section 60B(2)(a)].[1]  They also have a right to be safe and protected from coming to harm and to receive proper levels of parenting [section 60B(1)(b) & (c)].  For obvious reasons, illicit drug use, by a parent, is inimical to these latter entitlements. 

   [1]  Hereafter all legislative references in [ ] are references to the Family Law Act 1975

3. In this context, it is the duty of the court to assess the risk one parent’s drug taking may pose to the individual child concerned and put in place orders, which are commensurate with the degree of risk arising.  However, there may be detrimental consequences, for the child, if an otherwise beneficial parental relationship is unduly restricted. 

4. Depending on the degree of risk arising, the appropriate response may be to prevent a drug affected parenting from interacting with the child concerned or to require any intervention between parent and child to be subject to supervision of varying degree of intensity, depending on the circumstances prevailing. 

5. Other common prophylactic responses are to order random drug screen testing or direct that the relevant parent undergo medical treatment or a course of counselling.  However, the court’s lodestone remains the child’s best interest, within a matrix of an assessment of risk. 

Background

1. Ms Chisholm “the mother” and Mr Chisholm, “the father” are the parents of X born (omitted) 2013.  They are both in their early thirties.  The father is a self-employed (occupation omitted).  The mother is currently primarily engaged in parenting X.  She is on maternity leave from a (occupation omitted) position at (employer omitted). 

2. The parties met in 2001; began to live together in 2003; married in November 2009; and finally separated on 6 May 2013.  From the mother’s perspective, the father’s habitual use of amphetamines was the reason for the marriage breakdown. 

3. The parties began to use amphetamines recreationally together in 2008.  It is the mother’s case that she was never as deeply involved in drug taking as was the father and ceased her use entirely in November 2011.  This decision, on her part, coincided with the father being diagnosed with Parkinson’s Disease, by a neurologist, Dr W. 

4. The father’s evidence is that he was emotionally devastated by this serious diagnosis, delivered to him at a relatively young age.  It is also his case that he has suffered from low self-esteem for many years and does not have a particularly robust personality.

5. In these circumstances, he found it difficult to cease amphetamine use.  To the contrary, he found the use of the drug resulted in the mitigation of some of the symptoms of his Parkinson’s Disease.  Accordingly, he concedes that his amphetamine use accelerated throughout 2012 and continued on in 2013.  The end of the parties’ marriage was a further stressor in his life, at the time. 

6. From the mother’s perspective, she too was devastated by the husband’s diagnosis.  However, she could not accept his ongoing amphetamine use, in the light of this diagnosis, as her understanding was that such drug use would accelerate the onset of symptoms of Parkinson’s, in the longer term. 

7. In addition, she became increasingly alarmed by the husband’s erratic emotional presentation, which coincided with the news of her pregnancy with X.  She asserts that the father behaved in a violent and aggressive manner towards her, when he was under the influence of amphetamines.

8. The parties had purchased the father’s (omitted) business, from his parents, in 2012.  As a consequence, in the early part of 2013, they found themselves to be under some financial pressure, which the mother believes was exacerbated by the father’s serious level of drug use. 

9. In all these circumstances, it is Ms Chisholm’s evidence that the father’s behaviour became more and more erratic and, as such, potentially hazardous to X, who, at the time, was a vulnerable baby of a few months of age.  This situation, untenable from the mother’s perspective, led to the parties’ final separation in May of 2013, when X was around four months of age. 

10. The mother commenced proceedings, in this court, on 29 May 2013, seeking orders in respect of both the division of matrimonial property and the ongoing parenting of X.  On an interim basis, she proposed that, following the completion of a success process of drug screen testing, the father spend brief periods of supervised time, with X.  The proposed supervisors were X’s maternal grandparents.  At the time of the application, X was being exclusively breastfed by her mother.

11. The father responded to this application on 19 July 2013.  On an interim basis, he proposed spending time with X for three hours each Tuesday evening and for a further period of six hours on each Sunday.  He disputed the need for supervision, asserting that he was drug free and in receipt of appropriate medical treatment and counselling. 

12. The father provided negative drug screen tests dated 14 March 2013; 8 April 2013; 24 April 2013; and 13 May 2013; to the mother’s solicitors in support of his position.  The taking of the samples in question was said to have been supervised by his general medical practitioner, Dr L.  A further clear test was provided on 26 June 2013. 

13. On 3 July 2013, the husband provided a random drug screen test which indicated that an amphetamine type substance had been detected.  The father’s position is that he had taken some cold and flu tablets, as he was unwell, in the week prior to the test, which accounted for the positive result. 

14. The father was supported by his general medical practitioner in this account.  The mother remains highly dubious about the result.  This test was followed by a further negative one on 12 July 2013.  Subsequently the mother has discovered that the father had a serious relapse in drug use in May of 2013, which he did not disclose to her voluntarily but rather denied.

15. This was the background to the proceedings coming into court, for the first time, on 23 July 2013.  By this stage, the father had not interacted with X for a period of around four months.  It was his case that he was desperate to see X and believed that the mother was being unreasonable.

16. On this occasion, the parties agreed that Mr Chisholm would spend three two-hourly periods, with X, subject to the supervision of the maternal grandparents, at their home.  An injunction was issued restraining Mr Chisholm from using illicit drugs, prior to or during any period he spent with X. 

17. Similar orders were made on 1 August 2013.  In addition, Mr Chisholm was ordered to engage in ongoing treatment and counselling, at the (omitted) Clinic and provide reports as to his progress.  In addition, he was to be subject to random supervised drug screen tests. 

18. In conjunction with the proceedings relating to X, directions were made to assist the parties to resolve the property aspects of the case.  On 17 April 2014, to the parties’ mutual credit, they were able to agree on final arrangements for the division of their matrimonial property.

19. Issues remain outstanding in respect of X, who is now around fifteen months of age.  The major issue concerns whether X’s time with her father should continue to be subject to supervision. 

20. At present, as a result of agreement reached on 28 October 2013, the supervisors of the father’s time with X are currently her paternal grandparents.  X is collected from the maternal grandparents’ home (Ms Chisholm is currently living with her parents) at the beginning of each contact period and returned to her mother by the paternal grandmother, at its conclusion. 

21. From the father’s perspective, although his parents’ home provides a comfortable environment in which to spend with X, the time is now right to move on from supervision and allow his relationship with her to deepen.  It is his case that he has provided compelling evidence, both to mother and the court, that his drug abuse issues are now well behind him and he does not pose any form of threat to X. 

22. The mother does not agree.  She categorises Mr Chisholm as an emotionally needy and manipulative person, who remains at significant risk of relapsing into amphetamine use because of his addictive personality, particularly if he is released from constant supervision.  She deposes as follows:

    “I say that the prospect of the husband commencing unsupervised time with X in the near future absolutely terrifies me.  The prospect of X coming to harm in these circumstances causes me to experience anxiety that can at times be quite consuming.”[2]

    [2]  See affidavit of Ms Chisholm filed 11 April 2014 at paragraph 5

23. Since the proceedings were commenced, those advising the mother have subpoenaed the father’s medical records and subjected them to an extreme level of scrutiny.  In particular, the mother has gained access to a report from Dr W, which causes her to doubt the father’s level of candour about his drug use history. 

24. In addition, it is the mother’s position that, particularly in May of 2013, Mr Chisholm was dishonest about his level of drug taking and this should cause the court to have an extreme level of disquiet at the prospect of relaxing the degree of supervision to which Mr Chisholm’s time with X is subject. 

25. These proceedings arise at an interim stage.  Accordingly, the court has not seen either party being subject to cross-examination and so cannot make its own direct assessment of their respective level of credibility.  In any event, it is notoriously difficult to assess issues to do with drug use and addiction in court proceedings, through presentation in court. 

26. The proceedings between the parties have been on foot now for a period of around twelve months.  Given X’s tender years and the mistrustful parenting relationship between the parties, it would be imprudent of the court to make long-term parenting orders, in respect of X, particularly so far as time with her father is concerned.  In any event, at this stage, neither party seeks any such long term orders.

27. However, there have arisen significant issues, between the parties, as to what should be the next steps in regards to X.  In the time which has elapsed since the case began, the parties have been able to commission an independent expert to prepare a family assessment report.  The expert concerned is Ms L, a psychologist.  Her report was released to the parties in mid-February of 2014.  Its contents are also controversial.

The father’s evidence

1. Mr Chisholm deposes that his time with X has gone well and has occurred without incident.  He further asserts that he has been absolutely committed to abstinence from drug use since May of 2013.  In this context, he has provided drug screen tests indicating negative results from November 2013; December 2013; January 2014; February 2014; and March of 2014; as well as a number of earlier negative tests, set out above.  Each of these drug screen tests was supervised by his general medical practitioner. 

2. In support of his position, Mr Chisholm has provided a psychological report, from his treating clinical psychologist, Dr J, which indicates that the father has been receiving regular cognitive behavioural psychological therapy, from Dr J, since February 2013.  In this context, Dr J indicates that she is confident that Mr Chisholm is not using any illicit substances.

3. It is also Mr Chisholm’s evidence that he continues to meaningfully engage with Dr F, who is a senior medical practitioner employed by Drug & Alcohol Services of South Australia and has done so since January of 2013.  Mr Chisholm has provided a medical report, dated 17 October 2013, from Dr F. 

4. Dr F assesses Mr Chisholm as being well motivated to stop amphetamine use, primarily because of the importance of his relationship with X.  In addition, Mr Chisholm advised Dr F that his neurologist had advised him that ongoing use of amphetamine might dangerously interact with the medication prescribed for treatment of his Parkinson’s Disease. 

5. Although Dr F cautioned that the cessation of problematic drug use was far from simple, he was of the view that the fact that Mr Chisholm had presented for treatment voluntarily was a promising indicator for a good outcome for Mr Chisholm.  Dr F further opined that medical treatment, though important in managing amphetamine use, was usually secondary to counselling, as the factor most likely to result in complete cessation of drug use. 

6. Dr F described Mr Chisholm’s clinical progress, since January of 2013, as being fairly normal.  In particular, he noted that a relapse of drug use was common, particularly if a former user was placed in a situation of pressure or stress.  In this context, Dr F reported that Mr Chisholm had relapsed into use of amphetamines, on three occasions, since January of 2013, the most recent being on 31 May 2013, which coincided with the parties’ final separation. 

7. The mother points to this admission, contained in Dr F’s report, which was not earlier disclosed to her, but was in fact strenuously denied by Mr Chisholm, as being a significant factor militating in favour of continued supervision, as it indicates  a degree of dishonesty, on the father’s part, about his previous drug use. 

8. Notwithstanding the mother’s criticisms, Dr F was positive about Mr Chisholm’s progress and pointed to his success, since February of 2013, in providing clean urine specimens, which indicated no amphetamine use, for three or four days prior to the test.  In this context, Dr F provided the following opinion.

   “Mr Chisholm continues to engage, voluntarily, with this service.  He has good impulse control.  I expect risk of recurrent amphetamine use will continue to reduce.  Risk of recurrent amphetamine use is likely to be highest in situations of stress and isolation.  I expect in situations of interaction with his child, of being directly responsible for her care, the risk of amphetamine use will be very low to virtually absent.  Given his progress to date, I do not expect drug use to have any negative impact on his capacity for effective and safe parenting.”

The mother’s evidence

1. The mother deposes as to her desire for X to have a close and positive relationship with her father, both now and in the future.  In support of her bona fides in this regard, she points to the fact that she has been amenable to the father’s time with X being gradually increased and it being supervised by relatives from his side of the family, rather than from hers. 

2. However, it is her case that Mr Chisholm has a history of blatantly lying about his amphetamine use, both to her and more recently to the court.  As indicated above, Dr F’s account of a relapse suffered by Mr Chisholm, in May of 2013, is at odds with what Mr Chisholm had earlier asserted, on oath, in these proceedings and instructed his solicitor to report to those advising the mother. 

3. In addition, the mother is extremely critical of Mr Chisholm for not releasing to her earlier a medical report prepared by Dr W, in October of 2013, which is critical of Mr Chisholm, particularly in respect of his lack of candour to Dr W, regarding his previous amphetamine use. 

4. In this report, Dr W noted that he had often lacked confidence in Mr Chisholm’s veracity, when he (the father) had reported complete abstinence from amphetamine use, which was borne out by the disclosures contained in Dr F’s report.  Dr W had not been informed of the relapses prior to and in May of 2013.

5. Ms Chisholm alleges that Mr Chisholm continues to associate with persons who use drugs and has, in fact, recently employed one such person.  In addition, she asserts that she recently received a hurtful piece of correspondence, in her letterbox, alleging that she suffers from a narcissistic and sociopathic personality disorder, which correspondence, although ostensibly anonymous, can, she believes, only have come from the father. 

1. The mother asserts that this correspondence demonstrates a complete lack of insight, on the father’s part, into the consequences of his behaviour for X and a lack of empathy for her.  For his part, the father denies being the author of the correspondence in question. 

2. Finally, the mother points to the fact that the father’s parents profess to have been unaware that their son was in the grip of a major amphetamines addiction, until he told them of it, in May of 2013.  In her view, this provides clear confirmation of the father’s duplicitous nature and ability to fool people, close to him, about his drug use. 

The family report of Ms L

1. I acknowledge that Ms L’s report has not, as yet, been subject to any detailed scrutiny, as she has not as yet been cross-examined by either party.  In particular, Ms Chisholm believes that Ms L has fallen into a number of significant factual errors. 

2. Notwithstanding this criticism, the fact remains that Ms L is an experienced psychologist, who has been providing expert evidence to the court for many years.  She interviewed the parties and those associated with them, at length, as well as observing each of them with X.  Accordingly, unless the report appears to me to be obviously flawed, it represents an important source of evidence, as Ms L has now axe to grind in the proceedings.  She is an independent expert.

3. Having read her report, I am satisfied that Ms L was well aware that the central issue in the case concerned the potential risks, to X, of her father’s drug addiction and the consequences of this addiction for Ms Chisholm to have confidence in the father.  In her report, Ms L indicated that Ms Chisholm told her that “she just does not trust Mr Chisholm”. 

4. To the mother’s credit, she reported to Ms L that X was fine both before she went to spend time with her father and when she came back.  In addition, Ms Chisholm had no criticisms of Mr Chisholm’s ability to care for X, apart from what she asserted was his propensity to relapse into drug use. 

5. In this context, Ms Chisholm described Mr Chisholm as being a convincing guy who would get back into using drugs, when he wanted to.  Given her view of him, the mother did not think she would ever be confident that Mr Chisholm was free of the risk of relapsing into drug use and as such, in her view, it was too soon to take away supervision. 

6. Ms Chisholm categorised Mr Chisholm as being a person who was particularly susceptible to stress.  In her experience, when stressed, Mr Chisholm was liable to use drugs.  To Ms L, Ms Chisholm indicated that her former husband had many stressors in his life, not the least of which was his Parkinson’s Disease and its debilitating symptoms. 

7. Ms L described X herself as a delightful toddler.  She had a secure attachment to her mother and settled appropriately with her father, who was described as spontaneously affectionate with X.  In the interaction between father and child, Ms L noted X to be calm and settled and to be well managed by her father. 

8. Ms L had available to her the report of Dr F and also interviewed Ms B, Mr Chisholm’s counsellor at (omitted) Clinic.  Ms B is reported to have indicated that she had become more positive and confident, regarding Mr Chisholm’s abstinence from drugs, over time.  She was aware of a set-back in this regard, for Mr Chisholm, around the middle of 2013. 

9. Under the heading key issues Ms L opined as follows:

   “I note that the indications from both the doctor and counsellor at (omitted) Clinic are that Mr Chisholm is doing well, and has been reasonably consistent in abstaining from the use of amphetamines.  The counsellor talked positively about his progress, and said that she did not think there were any outstanding issues related to his drug taking that Mr Chisholm needed to address.  I note that the doctor (see report by Dr F, dated 17 October 2013) considers that Mr Chisholm is doing well and this was confirmed by the counsellor when I spoke to her just a few days ago.

   On this basis, I think it is reasonable for the court to consider taking away the requirement for supervision.  I think that it would be helpful, however, that the paternal grandparents continue to attend for at least a part of Mr Chisholm’s time with X.  This will hopefully not only help Mr Chisholm to make the transition into fuller responsibility for X, but also reassure Ms Chisholm.

   I also think, on the basis of comments from (omitted) Clinic staff, and Mr Chisholm’s presentation with X during this assessment process, that an extension of time is warranted.  My suggestion is that the day he has with her on the weekend is extended by 3.5 hours to go from 10:00am to 5:30pm.  This way X will have a full day with him and begin to adjust to longer periods of time in her father’s care.  As suggested above, although I do not think that orders should require supervision, it would be better for everyone concerned for the paternal grandparents to be part of the visit for at least a two hour period during the day X is with her father.

   In any event, I think the main point is that despite Ms Chisholm’s reservations, the objective information indicates that Mr Chisholm is travelling well and heading in the right direction.  I think the suggestions made above about a slight extension of time, plus the grandparents still being present for part of the time, seem a reasonable next step.  Also as suggested above, a review could be held towards the end of this year to determine progress.

   I also think that it is very important that Mr Chisholm continues his contact with (omitted) if possible.  I am aware that reports about his progress are encouraging and augur well, however I am also concerned about his previous ability to cope with stress.  He has said that he has made good progress on this front, however I think it is important he continues to maintain contact with a health professional on this issue for the next 6 months, to ensure that his progress is consolidated and also for his own sense of being supported.

   In addition, I think it would be constructive in building trust if Mr Chisholm agreed to continue random drug testing (for example, on at least three occasions) prior to that time of review.”

10. Given X’s age and the complex issues raised by the case, Ms L considered it premature for the court to consider any regime of overnight time for father and child, certainly not prior to a comprehensive process of review. 

11. Accordingly, at this juncture it is not possible to finalise the parenting aspect of the case, as has occurred with the property side of things.  At this point, Ms L’s formal recommendations are as follows:

    ·X live with her mother;

    ·X see her father either –

    ØTwice per week every Wednesday from 4:00pm to 7:00pm; as well as on alternate Sundays from 10:00am until 5:00pm and alternate Saturdays from 10:00am until 5:30pm; or

    ØThree times per week every Wednesday from 4:00pm to 7:00pm as well as another night, for two hours from say 5:00pm to 7:00pm, and then alternating Saturdays and Sundays from 10:00am until 3:30pm;

    ·The paternal grandparents be present for two hours of each weekend visit for the next few months;

    ·Thereafter the formal requirement for supervision be withdrawn but the paternal grandparents maintain their presence to support the father and reassure the mother;

    ·The father maintain contact with a counsellor for the next six months;

    ·Mr Chisholm undergo three or so random drug tests prior to review;

    ·The matter return for review at the end of the year prior to any consideration being given to overnight time.

12. To her credit, Ms Chisholm is open to X spending time with her father, each Wednesday from 3:00pm until 6:00pm and in a regime of alternating Saturdays and Sundays between 9:30am and 4:00pm.  She wishes to continue the existing regime for handover and agrees that there should be a review, involving Ms L, towards the end of 2014.

13. Ms L, she believes it is imperative that Mr Chisholm continue to engage with (omitted) Clinic and that this should be mandated by the court.  It is her position that random drug screen testing should continue, but relaxed slightly.  She proposes six random tests over the next eight month period. 

14. However, as previously indicated, she remains steadfastly opposed to there being any relaxation of supervision.  She is however open to a change of supervisor.  In this regard, she proposed that time be supervised either by the father’s parents or by his sister, Ms M.

15. Ms M has provided an affidavit in the proceedings recently.  She was a friend of the mother but the two fell out when the parties separated.  Ms M has a child similar in age to X and is willing to be a supervisor.  She believes that the presence of her child will assist X.  Ms M has two other children.

16. In general terms, Mr Chisholm accepts Ms L’s recommendations.  He promotes Ms M as a potential supervisor.  Although he does not accept that there is any need for his time with X to be supervised, in order to assuage Ms Chisholm’s concerns, he is willing to accept supervision for the first two hours of each weekend visit. 

17. These proceedings are directed to resolving this interim issue between the parties.  In respect of it, each party has filed a significant level of material and so necessarily committed a significant level of funding.  This is demonstrative of the great importance the issue of supervision has for each of them. 

The legal principles applicable

1. Interim hearings do not determine long term arrangements for children.  That is the function of final hearings.  However, the same principles apply at both the interim and final hearing stage. 

2. In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.

4. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

6. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. In this case, it is the mother’s position that the court needs to give pre-eminence to the need to protect X from coming to physical or psychological harm, as a consequence of being exposed to some form of neglect or abuse arising from Mr Chisholm’s relapse into amphetamine abuse. 

8. On the other hand, it is Mr Chisholm’s perspective that he needs to interact with X in such a way that his relationship with her will become imbued with more rather than less meaning.  He believes that the presence of supervisors, no matter how well-meaning and non-intrusive, will prevent him from having a natural and free-flowing relationship with X and to use Ms L’s phrase will act as an impediment to him making the transition into fuller responsibility for X.

9. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. 

10. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

11. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[3] 

    [3]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

12. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[4] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[5] 

    [4]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [5]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

13. In this case, neither party asserts that the presumption of equal shared parental responsibility should be applied.  This is sensible given X’s tender years and the level of mistrust between them. 

14. Accordingly, the court need not actively consider X spending either equal periods of time or substantial and significant periods with her father.  In any event, I am satisfied that neither such outcome would be in X’s best interests [section 61DA & 65DAA].

Discussion

1. To Ms Chisholm’s credit, she describes X as a child, who is not greatly discomforted, either before or after she spends time with her father.  This view was confirmed by Ms L, who views X as a delightful child, who is at ease in her father’s care.  Ms L also considered that Mr Chisholm was able to manage X appropriately. 

2. Accordingly, there seems no doubt that X is likely to benefit from having a meaningful level of relationship, with her father, in future.  I accept that Mr Chisholm loves X and so has much to offer her.  Ms Chisholm wants X to know and love her father.  From her perspective, the central issue in the case is protecting X from coming to harm, if her father relapses into amphetamine use.

3. It is her case, denied by Mr Chisholm, that when he was under the influence of amphetamines, he was violent towards her.  She fears that if Mr Chisholm provides care for X, whilst under the influence of amphetamines, he will behave erratically; his judgment will be affected; and he will be incapable of appropriate self-regulation.  All factors potentially dangerous to a child of less than two years of age.  

4. I agree that a drug affected parent is not an appropriate custodian for a child of X’s years (or indeed an older child).  I also accept that, on balance, the evidence available to me indicates that Mr Chisholm has made significant steps towards his rehabilitation.  These steps can be summarised as follows:

   ·He self-referred to (omitted) Clinic and continues to undergo treatment there;

   ·His drug screen tests have been predominantly clear;

   ·He continues to undergo counselling;

   ·He is gainfully employed;

   ·He has significant factors motivating ongoing abstinence, the most significant of which is his desire to have a satisfying relationship with X. 

5. However, as with all former addicts, there is always a risk of relapse.  As Dr F points out, if a person with addiction issues is placed in a situation of stress or pressure, he or she may seek to self-medicate or seek solace in renewed drug use.  This was the situation, as recently as May of last year, for Mr Chisholm.

6. Mr Chisholm, in my assessment, remains a person of some vulnerability.  His period of abstinence remains relatively short, when compared with his period of previous drug use.  Significantly, he remains a person suffering a serious and debilitating illness.  Relations with Ms Chisholm remain strained.  As a consequence, his life is not without its difficult features and obvious stresses. 

7. This is Ms Chisholm’s view.  She regards it as inevitable that Mr Chisholm will start to abuse amphetamines again, given the deficits in his personality, once scrutiny is removed from him.  I acknowledge that this must be a possibility, which cannot be definitively ruled out, particularly given the insidious nature of addiction. 

8. I am not infallible. I cannot see the future or look into the heart or mind of Mr Chisholm.  Rather, what I must do is approach the evidence available to me, in a logical and rational manner, and make some objective assessment of the risk potentially arising in permitting X to spend unsupervised time with her father.  There is, of course, the possibility that however carefully I undertake this process, I will be mistaken in my assessment of Mr Chisholm.

9. I acknowledge that it is impossible for me to make a finding that unsupervised time, between Mr Chisholm and X, represents no risk whatsoever for X, given Mr Chisholm’s history of serious drug use.  However, that is not the test.  Rather, what I must determine is whether Mr Chisholm spending such time, with X, would represent an unacceptable risk of her coming to harm, which no court should countenance. 

10. In this case, in my view, it is a significant factor that X has never actually come to harm, whilst in her father’s care.  In this sense, the degree of risk is inchoate or somewhat speculative.  There is no evidence to indicate that Mr Chisholm would willingly do anything to place X in a situation, in which she would potentially come to harm.  Drug free, Mr Chisholm is an unexceptional parent about whom no court would hold any concerns.

11. In this sense, he is to be characterised as a good parent, who loves his child.  The risk is whether he will do something potentially detrimental to X or behave inappropriately, whilst affected by drugs.  Otherwise, given his love for X and his parental capacity, Mr Chisholm does not represent any form of risk to X. 

12. To the contrary, apart from the potential threat of his drug use, Mr Chisholm is likely to be a beneficial influence in X’s life.  Meaning in parent/child relationships comes from both the quantity and quality of time a parent spends with a child. 

13. Time which is subject to rigorous and unnecessary supervision or which is extremely limited in its extent is not likely to provide an optimal environment in which to develop and extend a parent/child relationship.  Unnecessary supervision may create an environment for parental interaction which is stilted and uncomfortable.

14. In W & W,[6] the Full Court spoke of a tension arising between the protection offered to a child by supervised contact and the potential detriments occasioned by the artificiality and limitations arising from such supervision, which can impact on the emotional wellbeing of the child concerned by creating an unwarranted curtailment of his or her parental relationship.  Supervision has limitations. 

    [6] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

15. It may not provide sufficient time for the fostering of an appropriate parental relationship.  It may prevent the parents concerned managing their own parenting relationship with one another.  It may at best be a temporary or stop-gap measure.  In addition, there may be a limit to potential supervisors, who have an understandable wish to get on with their own lives and not be tied indefinitely to a requirement to provide supervision. 

16. Significantly, the parent who is subject to supervision may be resentful about it and this may, in turn, impact upon how or she interacts with the child concerned.  As such, it may act as an impediment to the child concerned feeling at ease, in the presence of the parent being supervised.

1. However, in cases where there is a high level of suspicion and apprehension in the residential parent’s household, supervision may be the only viable outcome, because otherwise excessive anxiety on the primary caregiver’s part may adversely impact on that parent’s ability to care for the child concerned.  This exercise is part of the court’s task in assessing the magnitude of the risk involved and whether it is unacceptable.

2. In W & W[7] the Full Court said as follows:

   “We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration.  We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement.  The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”

   [7] W and W [Abuse allegations: unacceptable risk] (Supra) at paragraph 115

3. In A v A[8] the Full Court of the Family Court said as follows:

   “The first enquiry is whether there is objectively an unacceptable risk.  If there is the Court must take steps proportionate to the degree of risk.  If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children.  The Court then needs to take steps proportionate to that circumstance.”

   [8] A v A (1998) FLC 92-800 at 87,996

4. In many cases, there will be an element of overlap between whether the anxiety of a parent providing primary care, about the other parent spending time with the child concerned, is objectively based and whether that parent has a flawed but nonetheless genuinely held view that there is a real risk of harm. 

5. In this case, Ms Chisholm has said that she is terrified at the prospect of Mr Chisholm spending unsupervised time with X.  However, up to this stage, there is no evidence to indicate that Ms Chisholm’s anxiety, in this regard, has had detrimental consequences for her capacity to parent X appropriately.  To the contrary, the evidence indicates that X is progressing well and separates easily from her mother. 

6. In addition, I have not been provided with any independent expert evidence, which indicates that Ms Chisholm is a person of particular emotional vulnerability or is a person who is particularly susceptible to anxiety.  I acknowledge however, that part of the job description of a mother is to be highly protective of her baby.  Ms Chisholm is not to be criticised for this.

7. In my view, the most significant protective factors for X, in respect of her father’s prospective drug use, are that he continues to undergo drug treatment and counselling at (omitted) Clinic and remains subject to random drug screen testing.  Mr Chisholm has said that he is amenable to both such conditions attaching to his time with X in the immediate future.  The evidence also indicates that they have been successfully applied, up to this stage. 

8. In my assessment, the continuation of these two interventions is both an appropriate and proportionate response to the risk of Mr Chisholm relapsing into his drug use.  Mr Chisholm would be foolish to allow the possibility of him being apprehended with a positive drug screen test because such a result is likely to result in the termination of his time with X for a significant period of time.

9. Ongoing treatment and counselling are likely to provide the best means of dealing with and deflecting any stressful situations confronting Mr Chisholm in future and so mitigate the prospect of him being inclined to abuse amphetamines again. 

10. The issue of on-going supervision is more problematic.  The major benefit of such a regime is that it will provide a constant level of reassurance for Ms Chisholm.  This is a factor, the importance of which cannot be over-stated.  She remains X’s unchallenged primary carer.  As such, it is important that she has a degree of comfort with on-going arrangements for X’s care.

11. Ms Chisholm has had a direct and visceral experience of Mr Chisholm’s drug use.  She describes this experience as being both frightening and confronting.  Mr Chisholm cannot be described as a casual user of the drug.  Rather his usage has required him to undergo a protracted regime of treatment.

12. There is also some substance to Ms Chisholm’s assertion that Mr Chisholm has lacked complete candour in respect of his disclosure of his level of drug usage, both to her and his medical practitioners, particularly around May of 2013.  In these circumstances, it is only to be expected that she would remain suspicious of Mr Chisholm.

13. Accordingly, I do not think that it can be said that Ms Chisholm’s insistence on on-going supervision can be characterised as being irrationally based nor can it be said to be motivated by vindictiveness on her part. 

14. The evidence indicates that Ms Chisholm consented to arrangements for X to spend time with her father on the occasion of the matter’s first court listing.  In addition, she agreed to a shift of supervisor from a member of her family to one from the father’s family.

15. In these circumstances, it is difficult for me to regard Ms Chisholm as being hyper-vigilant of X.  Necessarily, she will remain highly protective of her daughter, quite possibly for the indefinite future.  However the question remains what is on-going supervision likely to achieve?

16. Clearly, its primary purpose is for the supervisor concerned to terminate any visit between X and her father, if that supervisor has grounds to believe Mr Chisholm is under the influence of drugs and immediately inform the mother of this eventuality.  In this sense the role of the supervisor is protective.  It entails some evaluation of the father, at the outset of each visit, to ascertain his state of possible intoxication.

17. Up to this stage, there has been no suggestion that Mr Chisholm has presented at any contact visit with X, under the influence of any illicit substance.  Nor has the mother suggested that he is likely to surreptitiously ingest a drug during any such visit to help him get through it in some way.  This latter incident seems fairly improbable in the circumstances of this case. 

18. Accordingly, the utility of supervision, of Mr Chisholm, is likely to attach the first portion of each visit, when he can be subject to some form of independent scrutiny.  Thereafter, it seems to me, its utility is likely to fall away somewhat, as it seems unlikely he will ingest amphetamines during a visit.

19. At this stage, I have come to the conclusion that, in the short to medium term, it is desirable that some form of supervision of Mr Chisholm’s time with X remain.  I reach this view because of Ms Chisholm’s frank admission that she is terrified at the prospect of supervision being removed; X’s tender years; and the fact that Mr Chisholm’s previous level of drug use was serious and his rehabilitation cannot be regarded as being complete.

20. As Ms L recommends, one of the purposes of supervision is to engender some degree of trust between the parties.  However, Ms Chisholm has frankly stated she is not likely to ever trust Mr Chisholm again.  In these circumstances, it seems both oppressive and unrealistic for the requirement for supervision to be imposed indefinitely, when it can never achieve one of its fundamental objectives.

21. Such an outcome would also prevent Mr Chisholm from making “the transition into fuller responsibility for X” to utilise Ms L’s terminology.  This may ultimately have consequences for the level of meaning in the relationship between father and child.  In practical terms, it may not be possible to find a supervisor willing to provide such supervision indefinitely, particularly when its immediate utility has passed.

22. In my view, there has to be some balance struck between assuaging Ms Chisholm’s legitimate concerns and the desirability of creating a situation in which Mr Chisholm can step up to the plate and assume complete responsibility for X, during each visit, including, at an appropriate time, in the context of an overnight stay.

23. If Mr Chisholm continues to provide negative drug screen tests and his progress at (omitted) Clinic remains satisfactory, in my view, a taper of supervision is inevitable.  As is the situation now, the parties are likely to continue to have diametrically opposing views as to how quickly and completely such of process of tapering of supervision should be introduced.

24. Ms L has proposed a compromise, which appears to me to be a sensible and child focussed one, which will allow some form of independent scrutiny of Mr Chisholm, at the outset of the longer weekend visit.  This will provide some form of reassurance for Ms Chisholm, as X begins the transition to spending a longer period of time in her father’s primary care. 

25. As previously indicated, the greatest form of protection for X comes in the form of Mr Chisholm knowing that he remains subject to random drug screen tests.  This seems to me to be a much more rigorous form of scrutiny than supervision by a lay person.  In these circumstances, I do not propose to require supervision for the shorter evening visit on Wednesdays, on which the parties have agreed.

26. I will however accede to Ms L’s recommendation that either the paternal grandparents or Ms M actively supervise the first two hours of each weekend visit.  Ms L has indicated her preference that this arrangement continues for the next few months.  Mr Chisholm has indicated a willingness to agree to two months.  I propose keeping it in place until the end of August 2013.

27. More importantly, I will formally mandate Ms L’s suggestion that either the grandparents or Ms M maintain their presence, in Mr Chisholm’s home, during the remainder of each such visit, until at least the end of August in order to support for Mr Chisholm and reassurance for Ms Chisholm. 

28. I consider that such a regime represents a proportionate response to the degree of risk posed by Mr Chisholm’s potential to relapse into amphetamine use.  It is also, in my view, responsive to Ms Chisholm’s legitimate level of apprehension regarding Mr Chisholm interacting with X in the short to medium term.  Importantly, in my view, it provides a basis on which to increase the level of meaning in X’s relationship with her father.

29. I will adopt Ms L’s recommendation that there be a review of this regime shortly prior to the end of 2014, which will include her re-visiting the family.  I will adjourn the proceedings to 9.30am on 10 December 2014.

30. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:   24 April 2014