Clare and Clare
[2011] FMCAfam 1226
•12 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLARE & CLARE | [2011] FMCAfam 1226 |
| FAMILY LAW – Parenting – order that exposes child to least risk – family violence perpetrated by father who has anti-social personality disorder – drug and alcohol issues with mother who has borderline personality disorder – role of supportive grandparents. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS CLARE |
| Respondent: | MR CLARE |
| File Number: | WOC 1149 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 2-6 May 2011, 27 May 2011, 14 November 2011 |
| Date of Last Submission: | 14 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Eldershaw |
| Solicitors for the Applicant: | Heard McEwan Legal |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Dignan & Hanrahan Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr Barry |
| Independent Children’s Lawyer: | Williamson Isabella Lawyers |
ORDERS
That all previous parenting orders be discharged.
That, subject to the Father communicating with the Mother in the manner set out in order 3 and in relation to the matters referred to in order 4, the Father is to have sole parental responsibility for decisions relating to the long term care, welfare and development of the Child [X] born [in] 2002.
That parental communication in respect of matters pertaining to the Child’s wellbeing, including physical, mental, emotional and educational, be effected in the following way:
(a)by letter for matters that are not urgent, which letters shall be expressed respectfully;
(b)by the paternal grandfather communicating with the maternal grandmother by telephone for matters that are urgent; or
(c)by the paternal grandmother communicating with the maternal grandfather by telephone for matters that are urgent.
That each parent communicate the following matters to the other in the manner referred to in order 3:
(a)The Child suffering any medical emergency;
(b)The Child requiring medical treatment;
(c)The Child’s schooling, including providing information in relation to events to which parents are typically invited.
That the Child live with the Father.
That, subject to the provisions of order 7, the Child spend time with the Mother:
(a)during school terms, each alternate weekend from 4:00pm Friday until 4:00pm Sunday;
(b)from 4:00pm until 8:00pm on the Child’s birthday if her birthday falls on a weekend;
(c)for half of each school holiday period at such times as agreed, and failing agreement, commencing at 10:00am on the first Saturday of the relevant school holiday period;
(d)from 12:00pm on 24 December 2011 until 5:30pm on 25 December 2011 and each alternate year thereafter; and
(e)from 5:30pm on 25 December 2012 until 5:30pm on 27 December 2012 and each alternate year thereafter.
That, pending further order, all time the Child lives with or spends with the Mother shall be subject to:
(a)the Mother living in the dwelling attached to the home of the maternal grandparents;
(b)the substantial presence of either of the maternal grandparents from 6:00pm until 8:00am;
(c)the Mother complying with all reasonable requests of the maternal grandparents, which shall include directions in respect of the care of the Child;
(d)the Mother continuing to attend upon her treating practitioners, Dr T and Dr H and following all reasonable directions by them;
(e)the Mother procuring the maternal grandparent’s undertaking to the court in the form required by the Independent Children’s Lawyer.
That there be no telephone communication between the Child and her parents when in the care of the other parent.
That both parents do all things necessary and sign all necessary documents to immediately enrol to use the CatholicCare Supervised contact and changeover centre at Wollongong for the purpose of effecting change over pursuant to these orders.
That, to facilitate these orders, changeover shall occur at the CatholicCare Supervised contact and changeover centre in Wollongong, unless otherwise agreed between the parties.
That each parent is restrained from:
(a)being under the influence of alcohol in the presence of the Child or while the Child is in that party’s care;
(b)using, ingesting or administering to themselves any drug, other than drugs which are prescribed to the party by a medical practitioner and are consumed by that party is accordance with the terms of the relevant prescription;
(c)bringing the Child into contact with any person under the influence of illicit drugs or alcohol;
(d)exposing the Child to drug paraphernalia;
(e)exposing the Child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the Child or any other person;
(f)causing or permitting the Child to be transported by any motor vehicle which is driven by a person who is disqualified from holding a drivers licence;
(g)denigrating the other parent, or a member of that parent’s family, and in this respect, each parent shall immediately remove the Child from the presence of any other person that does so.
IT IS NOTED that publication of this judgment under the pseudonym Clare & Clare is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 1149 of 2008
| MS CLARE |
Applicant
And
| MR CLARE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] who is nine years old. In a nominal way it is about what is in [X]’s best interest, but the reality of this case is that the Court must make orders which expose [X] to the least risk. A theme of this case is, therefore, what the Court should do in relation to [X] when it is metaphorically caught between “a rock and a hard place”.
[X]’s mother is the applicant in these proceedings. She is 37 years old and is a [occupation omitted], though not currently working as such. [X]’s father is the respondent. He is 30 years old and is a [occupation omitted], though not currently working in that capacity. The parents met in 1999 and commenced cohabitation in 2000. At the father’s buck’s party on 22 October 2001 there was an incident in which the father assaulted a female stripper, breaking her cheek and jaw which required surgery. He was subsequently convicted of assault occasioning grievous bodily harm. The parents married [in] 2001 and [X] was born [in] 2002.
On 15 December 2004 the father was sentenced to an 18 month custodial term arising out of the assault at his buck’s party. He successfully appealed this sentence and it was reduced to two years periodic weekend detention with a non parole period of 18 months.
Whether the Court has regard to the mother’s account of the relationship, or the father’s account of the relationship, it was a tumultuous one. The mother asserts that the father was systematically and seriously violent and abusive towards her. The father asserts that the mother struggled with an addiction to drugs and alcohol.
The parents separated in June 2007 and, initially, [X] lived with her mother and spent each alternate weekend with her father. It is common ground that both sets of grandparents were involved in supporting both the mother, father, and [X] throughout the relevant periods.
The mother asserts that the family violence continued after separation. It is clear that apprehended violence orders were made both against the father, and the mother in the post separation period. The father was convicted of contravening the apprehended violence order, as was the mother. There was an incident on 19 April 2008 at the wedding of the father’s sister. The mother asserts that the father was violent towards her after the wedding. The father says that the mother was under the influence of drugs and alcohol and disrupted the wedding. The assault against the mother was a very serious one.
On the mother’s case, between the end of 2008 and mid 2009, she entered a dark period where she suffered with depression and struggled with both drugs and alcohol. Late in October or November 2008 [X] went into her father’s care, and she remained there continuously till the hearing. The mother had contact, but this was often problematic. The mother attempted self harm during this dark period. She was in and out of hospital. During this period the mother took [X] from school and this led to the father seeking, and being granted, a recovery order.
In February 2009 the father re-partnered with Ms W, but that relationship ended in 2011, during the course of these proceedings.
Once the mother came out of rehabilitation in August 2009 orders were made by consent for [X] to live with the father, and to have contact with the mother on a regular basis. Both parents were required to provide urinalysis. On either account, contact during this period through to the hearing, was marked by conflict and incidents at change-over, and the communication was fraught.
Both the parents came to the hearing and raised serious issues about each other. The mother asserts that the father is not only violent, but abuses drugs. The father asserts that the mother continues to struggle with drug and alcohol issues, as well as experiences mental health problems.
The mother was represented by her Counsel, Ms Eldershaw, the father by his Counsel, Mr Greenaway, and [X] by the Independent Children’s Lawyer’s Counsel, Mr Barry. Expert evidence in this case was presented by Dr W, a consultant, family and child psychiatrist, and by Professor H, who was able to interpret the results of various toxicology tests. Evidence was provided by the mother and father, the maternal grandparents, and the paternal grandmother.
At the time the hearing commenced, the mother’s proposal was that all previous orders be discharged, that there be equal shared parental responsibility, and that [X] live with the mother. She proposed that the father spend time with [X] each alternate weekend and for half of the school holidays, with changeover to occur at the Catholic Care supervised changeover centre in Wollongong. This remained the mother’s proposal by the time of final submissions.
The father’s proposal was to maintain the existing orders. Those orders provide for the parents to have equal shared parental responsibility in relation to long-term care of [X], sole parental responsibility in relation to day-to-day care of [X], that [X] live with the father and spend each alternate weekend with the mother, and half of each school holiday period, with changeover to occur at [shopping centre omitted]. The father maintained this position through to the time of closing submissions.
The Independent Children’s Lawyer’s proposal was only formulated after hearing all of the evidence, and shortly before submissions. The minute of order proposed by the Independent Children’s Lawyer is reproduced in the schedule to these reasons. Ultimately, the Independent Children’s Lawyer proposed that [X] remain living with her father and have contact with her mother for three out of every four weekends, and for slightly more than half of each school holiday period.
This is a difficult, complex case that is about balancing risk. There are no ideal solutions. Even just based on a reading of the documentary evidence available to the court before hearing evidence, it was patently obvious that there were clear levels of dysfunction in both the mother and father’s household and that the relationship between them was a toxic one. Even before hearing the evidence in this case it was apparent that there would be no easy solutions.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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 the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Evidence of Dr W
Dr W is a Consultant Child & Family Psychiatrist who was appointed as the single Expert in this case. His report dated 10 February 2011 was received by the court on 1 April 2011, and released to the parties that date. Dr W has practised full time in Child, Adolescent and Family Psychiatry since 1978. During the course of preparing the report he interviewed the father, the mother, the child [X], the paternal grandparents, the maternal grandparents and Ms W who was, at that time, the father’s partner. It should be noted that Ms W and the father were no longer in a relationship by the time of the hearing.
Dr W also had available to him a considerable quantity of documents which he reviewed. This included the documents filed in both the mother’s and the father’s case and the documents produced on subpoena as at that time, including documents produced by the NSW Police, Department of Community Services, and extensive health records. The material available to Dr W was, therefore, quite extensive. He had the opportunity to observe [X] and her interaction with the significant adults in her life. That is an opportunity I did not have. I had a more extensive opportunity to see the witnesses, particularly in the court room context where there was a measure of pressure exerted in cross-examination.
Before setting out Dr W’s opinion and recommendations, it is important to note that during his cross-examination he repeated, at least twice, that this was a complex case and that the court was caught between “a rock and hard place”. As will be seen, there are clear difficulties with both parents and the proposals they advanced to the court. Dr W repeated what he sets out in his opinion and recommendations, and that is that whilst he makes a certain recommendation, it would take very little for him to swing towards the opposite recommendation.
Dr W’s opinion is expressed in forty paragraphs, all of which I think need to be reproduced.
1.I will take the liberty of changing the order of the considerations that you have asked me to address, as set out in your “Letter of Instruction”.
2.I will begin with the mother’s mental health.
3.I am satisfied that Ms Clare has met criteria for a diagnosis of Borderline Personality Disorder. This involves a fragile sense of self, resulting in a pattern of unstable relationships. Such women frequently have a pattern of abusive relationships based on their wish to be loved, while lacking the confidence to protect themselves. Their vulnerability is shown by exaggerated emotional responses, with marked anxiety and depressive features. They find life stressful and stress reduction by self-injury such as wrist cutting is almost pathognomic of the condition. There is also an associated increased incidence of substance abuse.
4.Certainly [Ms Clare] has suffered alcoholism for which she has had treatment. I am aware of no substantive evidence that she has abused alcohol since her discharge from the Kedesh Programme in August 2010.
5.I am less sure about the evidence of her use of illicit drugs. For reasons I will outline later I put no significant weight of claims made by Mr Clare and his family about her use of drugs. I have no doubt that they are strategically depicting her as incapacitated by drug and alcohol abuse to the extent that she is an unfit mother, and that therefore [X] should remain in the care of her father.
6.Ms Clare has acknowledged drug use to psychiatrists and other therapists, but she has not indicated her drug use as having been a problem. She has claimed that most of her drug use was recreational, and within the context of her relationship with Mr Clare.
7.I am aware of no definite evidence of Ms Clare having been adversely affected by drugs other than alcohol, except for the claims made by Mr Clare and his family.
8.Nevertheless, I do find it difficult to accept her claims that syringes and medication she took from work were for the treatment of migraine, particularly as a Police search of her vehicle discovered a bag containing syringes, alcohol wipes and plastic spoons.
9.I consider it likely that Ms Clare has used illicit drugs, including by injection, but I have found no convincing evidence that her functioning has been adversely effected [sic]. Her problem has been alcohol. In summary I have seen no convincing evidence that Ms Clare has been dependent on drugs other than alcohol.
10.Ms Clare has suffered depressive mood swings that have generally been a result of her emotional vulnerability and her life situation, particularly the failure of her marriage and her losing the care of her daughter. It is also accepted that Ms Clare has had work related difficulties, but I am not in a position to say whether her psychopathology has contributed to her work problems, or whether she was a victim.
11.I do acknowledge that for a substantial period Ms Clare was working long hours to try to manage financially, and this was at a time she was stressed by difficulties in her marriage. For her husband to respond to her need to rest, with accusations of being a lazy housewife and poor mother, and his pouring soft drink on her when she was in bed strikes me as reprehensible. Nevertheless it may well be that Ms Clare has limited coping abilities.
12.I have not been able to form a definite opinion as to the amount of care each parent has provided. They each claim to have been the primary care giver. In general I seriously question the honesty of claims made by Mr Clare and his family, and when there is a difference I am inclined to prefer Ms Clare’s account.
13.Because of Ms Clare’s working hours and the fact that she was struggling to cope, Mr Clare’s mother probably did provide considerable care of [X]. Mr Clare does not strike me as the type of man who would have been providing the amount of childcare that he claims.
14.Ms Clare’s records give accounts of periods of elevated mood suggesting hypomania, and this has raised the question of whether there is an underlying Bipolar Disorder. It is possible that some of the “highs” might have reflected use of stimulant drugs, although this is not established. It is also possible that her “highs” reflected the emotional labiality of her Borderline Personality Disorder. Overall I consider it as unestablished whether she does or does not have Bipolar Disorder.
15.You have asked me about Ms Clare’s social integration. I have noted her comments to therapists about having not had a close relationship to her parents, but I am aware of no evidence of her currently having a difficult relationship with them. Nevertheless, I assume she would prefer to be living independently. I cannot comment on claims that Ms Clare has had difficulty in work relationships, but part of Borderline Personality Disorder involves a tendency to either over-value people or see them as bullying etc. The fragile sense of self makes the individual over-sensitive to perceived rejection, and being treated unfairly etc. This also can lead to retrospective falsification of memories of childhood. The response is more likely to be anxious/depressed than angry confrontational, and such individuals usually take things out on themselves.
16.Medication will presumably continue to be necessary for stress and emotional regulation. Such medication would not be expected to adversely impact on parenting abilities.
17.It is difficult to give a confident prognosis for Ms Clare’s disorder. She is likely to remain vulnerable. In addition there is a significant element of chance in the relationships formed, and such women function much better when they are in a supportive relationship.
18.It is even more difficult to assess the likelihood of a relapse in her alcohol abuse. If she does not regain the care of [X] the risk is probably reasonably high.
19.Mr Clare in all probably [sic] has Anti-Social Personality Disorder.
20.I accept Ms Clare’s account of the verbal and physical abuse she has suffered from him, and the abuse has occurred at times that he was not obviously affected by alcohol or drugs.
21.His level of lying in his denial of any wrongdoing I find extraordinary. In the example of his differing stories in denying he assaulted the stripper, his lying is shown to be dysfunctional to the point of being pathological.
22.I am also of the opinion that his family collude in his denials, with their presenting a united front. I assume they act in clan loyalty, even if they have their own internal disputes.
23.There are a number of examples of Mr Clare being very intoxicated, although I acknowledge that these have largely been such occasions as “Buck’s Nights” and weddings.
24.I have heard nothing or read nothing that gives any evidence of Mr Clare having ever really cared for Ms Clare, and throughout the relationship the evidence is that she has been used and abused. Even after separation it appears that Ms Clare repeatedly allowed Mr Clare back, including allowing a sexual relationship. This however seems to have ended with the wedding and Mr Clare being charged with breaching his AVO.
25.Ms Clare undoubtedly experienced Mr Clare’s behaviour that night as a serious assault, and I gather that there are photographs substantiating the severe bruising she suffered. In typical fashion Mr Clare has dismissed the bruises as being the result of her injecting drugs.
26.In truth despite the Clares’ claims concerning Ms Clare using drugs, there is more evidence of Mr Clare abusing drugs. As well as charges of possession of marijuana and ecstasy, he was convicted of supplying drugs, and the COPS Report in relation to the latter indicates that intelligence available to Police at the time indicated that Mr Clare was known as a dealer. There are also claims that Mr Clare has subsequently “grassed” on associates in regard to drug dealings.
27.In summary I have formed the view that Mr Clare is a violent liar who throughout has used drugs, and probably dealt drugs. He has also been seriously abusive of Ms Clare, and I accept her description of him as controlling and determined to get his own way. It also seems probably that her claim of Mr Clare’s mother always taking his side is correct.
28.I do not accept Mr Clare’s claims to have been the primary carer of [X] before the separation. I do accept that his mother did provide considerable care of [X].
29.It seems to me that following the end of the relationship, with Mr Clare being convicted of breaching the AVO, that he and his mother became proprietorial towards [X], and they then adopted the strategy of depicting Ms Clare as an unfit mother, addicted to alcohol and drugs, and at times as being suicidal.
30.As Ms Clare is undoubtedly a vulnerable personality she has not handled the failure of her marriage and the antagonism of the Clare’s well, and her behaviour, such as cutting her wrists, has exacerbated the attacks on her, and this has resulted in her losing the care of her daughter in an undefended Hearing.
31.I am aware of no evidence that [X] has been directly abused or neglected. However there seems little doubt that she has repetitively been present when her parents have been verbally and physically abusive to one another. There is little evidence that either parent has made a real attempt to protect her from this.
32.[X] has clearly made a decision to tell me that she wants to live with Dad. However, I was not satisfied with the reasons she outlined. Beyond saying that she has her own room there, she said nothing about relationships and it was clear that she was trying hard to avoid saying anything that might upset anyone.
33.I am satisfied that [X] like most children has a tendency to say what she thinks will make people happy, but she was well aware of the fact that when it came to the question of saying where she wanted to live, she could not keep both parents happy.
34.The Clare’s complain that Ms Clare tells [X] that she is not allowed to talk about things that have happened at Mum’s. However, I consider it as far more likely that [X] avoids talking about things at Mum’s when she is at Dad’s because she is aware that saying anything positive about her mother would not be well received.
35.Given the history of family conflict and abuse, and the abrupt changes in care from her not being returned, her mother collecting her from school and the Recovery Order, it is understandable that now, having been with her father and attending [omitted], where her only friends would be, that for her the status quo represents stability.
36.I also have little doubt that [X] has felt pressured by her father and his family to remain loyal to him.
37.I assume that with Mr Clare working Ms W would be the primary care giver, and I am concerned that there is such limited information on her. The Clare clan are supportive of her, and [X] interacts with her appropriately, and [X] is clearly fond of [name omitted]. Nevertheless there was a marked difference in my observations of [X] when she was with her mother and not having to worry about what the Clare’s might think, and when she was with Mr Clare, his parents and Ms W. With them there was more of an impression of control as opposed to nurture, and certainly there was nothing in the way of fun.
38.I do not necessarily hold Ms W’s imprisonment against her, but her unwillingness to give any information on her background concerned me. The repetitive nature of her offending, and her continuing to drive without a licence, even when she was on a suspended sentence is extraordinary, and it is something that must reflect some psychopathology. Despite her denials I consider that substance abuse may well have been a contribution to her losing her licence and her repeat offending.
39.I have no doubt that [X] has a closer and warmer attachment to her mother than to any other person. However, she does accept being cared for by Ms W.
40.In terms of each parent facilitating a relationship with the other parent, and their capacity to make joint decisions concerning [X], I am of the opinion that this is not happening, and I cannot see how it can happen given the father’s domineering control, and the mother’s inability to assert herself. I cannot see how Mr Clare and Ms Clare can appropriately communicate.
I make the following observations about the opinions expressed by
Dr W. For all practical purposes his diagnosis of the mother as suffering from Borderline Personality Disorder was not challenged. There is, however, an issue about his opinion expressed at paragraph 9 that he had seen no convincing evidence that the mother has been dependent on drugs other than alcohol. Indeed, there is an issue about the extent to which the mother was, or may in fact continue to be, dependent on alcohol. There was no challenge to Dr W’s diagnosis of the father as suffering from Anti-Social Personality Disorder. To the extent that Dr W was of the opinion that the father was minimising the nature and the impact of his violent behaviour, there was no direct challenge to this, and in any event his opinion is consistent with the findings I will make, having regard to all the evidence.
In relation to [X], Dr W believes that there is no evidence that she has been directly abused or neglected. There was no challenge to that. Indeed, it is consistent with the findings that I will make based on all the evidence. To the extent that he expresses concern about the extent to which [X] has been exposed to her parent’s conflict, again there was no challenge about this, and it is entirely consistent with the evidence as I saw it.
Dr W raises some concerns about the extent to which any expression of a view by [X] to live with her father is an objective and independent one. As it turns out, and having regard to the evidence, I share Dr W’s concern. In a case where there is such high conflict between the parents and where [X] has been exposed to this conflict as well as to various different levels of parental dysfunction, it would be unwise indeed for the court to place any significant weight on [X]’s views.
Dr W expresses some concerns about Ms W, the father’s partner. As it turns out, she is for all practical purposes no longer on the scene so that her future role in these proceedings is irrelevant.
Dr W expresses certain opinions about [X]’s attachment, describing [X]’s attachment to her mother as closer and warmer, presumably in comparison to that of the father. In cross-examination this was challenged, and for good reason. In the penultimate paragraph, on the first page of Dr W’s report he states:
My secretary commented that for this period that [X] was with her mother, she seemed obviously happier and more relaxed than when the Clare’s were around, even laughing. My period of observation was brief, but I concurred, and I found myself already wondering whether [X] actually preferred being with her mother, but that she was feeling under some pressure from her father and possibly his mother to tell me that she wanted to live with him.
Whilst in cross-examination, Dr W sought to defend the above paragraph, from the court’s perspective it remains highly problematic. As an expert witness Dr W is neither entitled to delegate part of his role to his secretary, nor is he entitled to base a conclusion, in whole or in part, on what someone else has seen. On reading the report I was left with the strong impression that the paragraph above on page 1 informed, in whole or in part, the opinion expressed at paragraph 39. As I do not know whether that opinion was expressed even in part on what his secretary observed, the opinion is unreliable and therefore less weight should be given to it. I comment that there is an obvious distinction between what his secretary observed to occur in the waiting room and then orally communicated to him, and a business record which might contain similar observations. Accordingly, Dr W’s opinion about attachment receives little weight in my decision. As it turns out, this case will not be principally decided by the question of [X]’s attachments.
Dr W’s last expressed opinion at paragraph 40 was, again, not seriously challenged. The parents cannot communicate. Indeed, based on all the evidence that I have seen, their relationship can only be described as a toxic one.
Dr W’s recommendations commence at page 28, and are reproduced in full:
1(a)I see no possible outcome that is in the best interests of the child given the relationship between the parents, and the father’s need to domineer.
2(b)I am satisfied that the mother had been the primary care giver, and that she still has the closest and healthiest attachment to [X]. Therefore one would usually consider that it would be in [X]’s best interests to primarily be in her mother’s care.
3(c)At [Ms Clare’s] current level of functioning I consider that there is no need for supervision when [X] is with her.
4(d)However, I acknowledge that Ms Clare will remain a vulnerable personality, possibly with periods of anxiety and reactive depression, and one cannot ignore the risk of relapse of her alcoholism. However, I consider that she would probably remain abstinent if [X] were residing with her.
5(e)Nevertheless, I am concerned that if the Court decided that [X] reside with her mother, the Clare’s would continue to sabotage this, and in the times that [X] spends time with her father and his family, she would continue to feel pressured to take their side against her mother.
6(f)If she is left in her father’s care, she will probably be looked after well enough, but it would be difficult for her to maintain a strong relationship with her mother. I also feat that if Ms Clare does not have Residence, then the risk of relapse in abusing alcohol and possibly drugs would be considerably increased, and that would further damage the relationship.
7(g)As [X] needs to be at one school, the distance between the parents’ homes is such that from Monday to Friday she will need to reside with one parent. Therefore if she is to have a meaningful relationship with both parents, she would need to spend a compensatory majority of the time at weekends and school holidays with the other parent.
8(h)If the Court were to Order that [X] reside with her mother in the Wollongong area, then there would probably be some stress involved in changing school, and making new friends, but if she was still spending most of weekends and time in school holidays with her father, I do not believe she would experience it as a significant separation. At the same time it would not protect her from feeling pressure from her father and his family, and she would still have conflicted loyalties.
9(i)Finally, I would say that on balance the stability of remaining with her father and Ms W and attending her current school is probably the safest option, although it would take very little to make me swing towards a recommendation of Residence with the mother.
One of Dr W’s recommendations clearly articulates the dilemma for the court – there is no possible outcome that is in the best interests of [X], given the relationship between the parents, and the father’s need to domineer. Whilst I think that this statement actually understates the complexity in this case, it is undoubtedly correct in asserting that this case is not really about the best interests of [X], but where are the least risks for her.
For the reasons that I have stated above, and will state elsewhere in these reasons, I am unable to accept Dr W’s assertion that [X]’s healthiest attachment is with the mother.
Ultimately, Dr W’s recommendation at the time was the [X] remain with her father, and his partner. It should be noted that this is described as “probably the safest option” rather than the best interests outcome. Dr W openly acknowledges that “it would take very little to make me swing towards a recommendation of residence with the mother.”
Indeed, in cross-examination, that is precisely what Dr W did. What seems to have tipped it in favour of the mother, from Dr W’s perspective was that the father’s relationship with Ms W had broken down.
One of the most important issues in this case is the extent to which the mother had been rehabilitated from her past alcohol problems. Dr W agreed that this was an issue for the court. It was the father’s case that the mother had, in effect, greatly exaggerated her rehabilitation from alcohol abuse and was significantly minimising the extent of her current and ongoing alcohol abuse. The evidence about this was put to Dr W.
The first evidence in this regard consisted of three taped recordings of telephone conversations with the mother which were admitted into evidence without objection. The second evidence related to an incident that occurred on 13 February 2011. The three taped telephone calls were played to the court, and to Dr W. More will be said about these recorded conversations elsewhere in my reasons. In the present context, the question is whether those recorded conversations indicate that the mother was under the influence, either of drugs or alcohol. It must be borne in mind that the mother’s evidence was that she was abstinent of alcohol and drugs from August 2009 when she had completed the rehabilitation. Dr W heard the same evidence of the recorded conversations as I did. His evidence is that he could not form a view from hearing the record, whether that was evidence that the mother was alcohol-affected at the time. With great respect to Dr W, I find it impossible to agree with him. The mother was clearly under the influence of something, whether it be drugs or alcohol. It must be remembered that I had the benefit of listening to the mother’s voice for many hours while she was in the witness box. The voice that I heard in the recorded conversation was clearly that of the mother’s (there was no dispute about this). She sounded groggy as well as aggressive in the first telephone recording. In the second recording the mother sounded almost incoherent. In the third recording the mother was quite clear and coherent, in strong contrast to the first two recordings, but as will be seen, she was abusive of the father in her conversation with [X]. The evidence is that the first conversation occurred in mid-2010, the second one of 27 December 2010 and the third one on 7 March 2011. Despite Dr W’s opinion, I believe that a reasonable inference to be drawn from this evidence is that in the first and second telephone recordings, the mother was under the influence of some substance, be it alcohol or drugs.
The evidence relating to the second incident on 13 February 2011 is set out in the following extract from the transcript of Dr W’s evidence, 6 May 2011, page 7, lines 29-45 and page 8, lines 1-9:
The evidence, Doctor, is that the mother went to a barbecue across the road on this night and had one or two drinks after she had taken her medication. On admission it is reported that she was brought in by ambulance - which is her evidence and her father’s evidence - and that she was intoxicated?
---Yes.
So there is also a reference to “has been drinking a lot lately”, that is in the doctor’s report?
---Right.
And that she had threatened behaviour towards her father; she had, that night, become more violent towards family members. That would suggest certainly in February 2011 that there was a relapse on her part; whether it was from excessive alcohol or the effects of interaction between a modest amount of alcohol and the antidepressant drugs she was taking. Perhaps if I show you the report in its entirety that might assist you, Doctor?
---Well, I’m, I’m, I’m not sure that it’s sort of necessary. I would comment that at that stage of her treatment, a supposedly recovering alcoholic I would have little doubt she had been given, given strong recommendations to be totally abstinent of alcohol.
Would it suggest a lack of judgement on her part if she didn’t heed that advice?
---Yes.
Yes. And that would be an ongoing concern given your knowledge of her background - - -?
---Yes.
- - - as to whether she would continue to display sufficient judgement - - -?
---Yes. I think with her, her, her problems with alcohol is sort of the core, the core of any concern about her, her sort of capacity as a reliable parent.
Dr W acknowledges that if it was in fact the case that the mother, as a recovering alcoholic, had consumed any alcohol at all, then it was indicative of a lack of judgment on her part.
In a passage at page 8 of the transcript, lines 22-38, Dr W in effect summarises the dilemma facing the court if it is indeed the case that the mother has relapsed in her drinking:
MR BARRY: Do you have problems - - -?
---I, I have completed my report with saying that in truth it would take very little to swing my opinion to a recommendation of [X] residing with her mother. At this stage the big question for me is that in the period subsequent to the writing of that report has the mother relapsed in her drinking problem to a level that, that it would not be responsible to put [X] in, in her care. On the other hand, I’m aware of the information about the breakdown in the relationship between the father and Ms W and if it was not the case that the mother has relapsed in the her drinking I would be seeing that as sufficient to swing my opinion to now be supporting residence with the mother. When [X] is with her mother my judgement is that it is a much better relationship, she is much happier; more comfortable in the care of her mother than she is with the Clares, but the big problem is the mother’s history of drinking.
See, one of the main - - -?
---So I’m now left almost wondering are we left in the situation where we’re saying the parents are equally problematic and are we, in truth, being forced to choose between the sets of grandparents.
Mr Barry, Counsel for the Independent Children’s Lawyer, sought
Dr W’s opinion about the best contact arrangement on both scenarios, i.e. whether [X] was ordered to live with her mother or father. Dr W’s first recommendation was that there be no telephone contact at all between [X] and her parent if it involves the parents themselves facilitating that telephone contact. In short, he thought this would cause more problems for [X] than the benefit to be derived by the telephone call. He emphasised, in the strongest possible terms that any contact arrangements must not involve the mother or the father coming into personal contact with each other. He was also strongly of the view that their inability to communicate and cooperate should inform a decision about how parental responsibility be allocated.
Dr W was of the view that provided the mother remained abstinent, there was no need for supervision. He remained of the view that the mother was probably abstinent from alcohol but acknowledged that she may have minimised her use of drugs.
In terms of the specific arrangements for contact, Dr W was mindful of the logistical problem of distance between the homes of the parents. He thought it was problematic for [X] to spend significant time travelling, and this regrettably meant that mid-week contact was impractical and disruptive. He recommended contact each alternate weekend, with the possibility of increased time during school holidays. Indeed, Dr W thought that possibly three out of four weekends would work, if [X] was ordered to live with her father. In cross-examination by Mr Greenaway, Counsel for the father, Dr W was challenged about the disruption that three out of four weekend contact would have in terms of [X]’s socialisation, forming friendships locally, etc. Dr W did not regard it as problematic.
Dr W described the risk for [X] if she is ordered to live with the father. His concern was that she would be exposed to the toxic atmosphere (my description, not his) in the household of the father, consisting of the father and his parents. He acknowledged the pressure that [X] would be subjected to. Predicting the long term impacts of this is difficult but he conceded that one way for [X] to resolve the conflict was to simply side totally with her father, and reject her mother. He agreed that this might ultimately, be the only way that [X] could survive. This would be undoubtedly destructive for her.
In cross-examination Dr W agreed that there was a concern not just about the mother’s alcohol use but the impact of the mother’s borderline personality disorder in terms of a general coping ability and emotional stability. He was of the view that the mother would remain a vulnerable person even if she remained abstinent from drugs and alcohol.
If [X] lived in the father’s household, Dr W expected that in practical terms it would be the paternal grandmother who became her primary caregiver. He thought that there was a good chance that the father would repartner, and then move out of his parent’s home. On the father’s proposal, therefore, there was likely to be a few future instability that might, for example, even involve a change of school.
Mr Greenaway challenged Dr W’s view that the mother did not need to be supervised. Dr W explained that this was predicated on the mother not abusing alcohol, but ultimately I asked Dr W a question and this exchange is recorded at page 26 of the transcript, line 14-44:
HIS HONOUR: So that, for example, doctor, if I had doubts about the mother’s abstinence, what’s the safest course to adopt? In all the circumstances of this case?
‑‑‑In the absence of strong evidence that not only is she drinking, but she’s doing that at times that she’s been responsible for the care of her daughter, I would have increased concerns. If you are reasonably satisfied that, as may well be the case in the past apart from the example of her having [X] in the car that she crashed with her high alcohol level, I’m not aware of clear evidence of her having been drunk, when [X] was in her care. So even if this time she still gets drunk, I would not necessarily see that as a bar to considering placing [X] with her, given that I continue to have significant concerns about her care by Mr Clare and his family.
Back to you, Mr Greenaway. Thank you.
MR GREENAWAY: Thank you, your Honour. Now, if the court found that, so far as the mother’s life was concerned and her living arrangements, that she lived her life so that she had a private life from her parents and that it was her future intention to – I withdraw that. That she had a private life from her parents, and that her parents allowed her to have her own private life, does that concern you at all?
‑‑‑It increases the risk if she has a relapse in her alcoholism, but in truth under our welfare systems etcetera, there’s steps that can be taken if her child is in a situation of neglect or abuse as a result of her parents’ alcohol or sort of drug abuse. We don’t remove children from parents’ care just because we consider there’s a risk of that happening in the future.
MR GREENAWAY: But what we can look at, we can have a look at the past, and we can have a look at the recent past, and we can make an assessment on that, can’t we? We can certainly do that?
‑‑‑Yes, and my assessment is that I’ve only seen that one incident where the mother has put [X] at risk as a result of her drinking.
I have difficulty with Dr W’s evidence in this regard. He seems to be saying that provided that the mother is not drunk when she is responsible for the care of [X], then [X] should still be placed in her care, given the concerns he has about the father and his household. His concern seems to be linked to the risks to [X]’s physical care. My concerns are much broader. My concerns are about the impact of alcohol abuse in terms of the mother’s availability to care for [X]. My concern includes not just what happens to [X] if any when her mother is under the influence, but what happens in the immediate short term aftermath, and the potential impact on the mother’s parenting capacity of abuse of drugs or alcohol. Indeed, Dr W ultimately agreed that it was up to the court to consider what the risk would be. As he said: “I’d say we’ll be between a rock and a hard place” (transcript page 27, line 13).
Indeed, the above statement was Dr W’s haven when challenged that he may have entered the arena without intending to do so as advocate for the mother, in failing to acknowledge the risks to [X] of her mother’s ongoing alcohol abuse.
Ultimately I find Dr W’s evidence very helpful in understanding the issues confronting the court in this very difficult case. His recommendation that [X] remain in the care of her father changed to being placed in the care of her mother. I can certainly understand the difficulty facing Dr W. In many respects it is the difficulty facing the court. Ultimately it will be findings I make based on the evidence of the parties and the witnesses that will decide this case, and not just
Dr W’s report.
Evidence of Professor H
Professor H is a specialist in gastroenterology and hepatology. He was appointed, by consent, to provide expert evidence interpreting the results of a number of tests that were undertaken by the mother to ascertain the extent to which, if at all, she had abused non-prescription drugs or alcohol. Professor H’s report is annexed to his affidavit of 12 November 2011. His report indicates that there was no evidence to suggest that the mother had engaged in the abuse of non-prescription drugs.
The situation in relation to alcohol is somewhat more complex. I have reproduced the relevant parts of Professor H’s report below:
2.1 Is the Mother in the past or is [she] presently consuming alcohol?
The pathology results are INDIRECT markers of alcohol use meaning that they are based on a biological effect that alcohol has on the body that leads to the alteration being measured. They are not direct measures of alcohol itself or a breakdown product of alcohol. Thus, these tests are of limited accuracy. There is an extensive scientific literature on this subject that has shown that the liver tests and in particular gGT detect approximately half to two thirds of people who are consuming alcohol in excess. The CDT measure is similarly of limited sensitivity. The most recent research has suggested that the two measures done in parallel are more accurate in men but the sensitivity of this approach has been debated in the case of women (Chen et al Alcohol and Alcohol 38:574-582, 2002). However, when both tests are raised, the combination of these tests is more specific for the diagnosis of alcohol consumption in all patients.
All the CDT test results in this case lie within the normal range. However, the results fluctuate significantly and rise close to the upper limit of normal. In my experience, these changes are more than would be expected from laboratory variations during regular testing. There is evidence from several studies that CDT rises less in women than men, so less substantial elevations with drinking are to be expected. Finally, the observed changes in CDT correlate well with the changes in the liver tests during this period.
Based on this, the results suggest that the Mother has been consuming alcohol during June and also during August 2011 and that she has not been drinking as much at other times. These observations only apply during the period during which these tests have been obtained.
The limitations of this indirect testing is that it relies on the effects of alcohol on the liver to produce these effects. In addition, other liver problems may influence these results. Specifically, use of some prescription medication can alter liver function, and weight changes can do so as well.
The pattern of test results is unlikely to result from anything other than alcohol consumption. The rest results rise and fall three times during this period. Alcohol consumption is often fluctuating substantially over this time frame but few other medical disorders would do likewise. Weight changes and medication use are unlikely to fluctuate in this way but cannot be excluded with certainty without a clinical assessment. In my opinion, these tests strongly indicate the Mother has been drinking during this period, even if they are not absolutely definite.
2.2 To what extent, if any, has the Mother has [sic] consumed alcohol in the past?
Abnormalities in liver tests usually suggest more longstanding alcohol use but the tests may become abnormal with as little as a few weeks of alcohol use. Thus, it is not possible to provide any usefully indication of past alcohol use (prior to the series of tests provided to me) from these tests. In all cases, the tests would be likely to return to normal with approximately a month of abstinence from alcohol.
2.3 Whether any alcohol consumption by the Mother is suggestive of excess alcohol consumption?
The changes in liver tests and CDT would NOT be expected in the face of alcohol consumption within NHMRC guidelines (average two standard drinks per day for women) and indeed that is a key reason for these guidelines to have been established.
If the abnormalities in these tests are explained by alcohol use, they will reflect excessive use, greater than four standard drinks per day on average.
These tests do not provide any direct indication that the amount of alcohol being consumed will influence capacity to care for children.
2.4 Whether the results suggest the Mother is continuing to consume alcohol to excess?
The results suggest the Mother is drinking on and off, with significant consumption during late September, early October.
2.5 Any other relevant matters.
The court order dated 27 May instructed the Mother to undertake CDT tests every fortnight for six weeks (three tests) thence monthly until November (four additional tests). I did not have results from August and September in my brief. I took the liberty of directly contacting the Pathology provider QML who confirmed that these tests HAVE been done. These additional results are included in my results table above.
As Professor H reported, all of the CDT testing was within the normal range. However, his conclusions were informed by the significant fluctuation of the CDT results, and the rise close to the upper limit of normal. In summary, Professor H’s report indicated that during certain periods covered by the testing the mother was using alcohol excessively, and specifically greater than four standard drinks per day on average. He described her consumption during late September and early October this year as “significant”.
Professor H was extensively, and expertly, cross-examined by Ms Eldershaw, Counsel for the mother. Ms Eldershaw demonstrated a very impressive knowledge of the science of toxicology. She was able to demonstrate that the full extent of the mother’s medications were not known to Professor H and that this could influence the test results. She elicited an acknowledgment from Professor H that the tests he interpreted were not strictly in accordance with the order that was made. Professor H agreed that if it were the case that the mother suffered a number of postulated conditions, this too would impact on the results. At the conclusion of his cross-examination Professor H agreed that there must be some doubt as to the reliability of the test results. However, he was quite firm in the ultimate opinion he expressed about the mother’s abuse of alcohol. In particular, Professor H asserted that notwithstanding the various matters put to him in cross-examination, some of which were hypothetical, and some not, in his professional opinion the fluctuations in the level of GGT, and CDT, in the mother’s blood strongly suggested excessive use of alcohol.
I accept Professor H’s evidence. In particular, I accept his evidence that the testing suggests that the mother was drinking on and off, with significant consumption, during late September and early October 2011. It should be noted, however, that any findings I make against the mother about her consumption of alcohol are findings informed not just by Professor H, but by other evidence. But as it turns out, and as I discuss elsewhere, the mother has made admissions to third parties about this. I find the mother’s denials unconvincing, and even her own parents observed her drinking. It must also be borne in mind that this is not just a case about excessive consumption of alcohol, but of the impacts on the mother of the effect of that consumption of alcohol when combined with the very significant quantity of prescription medication that she takes.
The Mother’s Evidence
The mother relied on her affidavit sworn 28 April 2011. She sets out a long and detailed history of the violence and abuse perpetrated on her by the father, often in the presence of [X]. For all practical purposes she was not challenged in this evidence, and I accept it.
There was, I accept, a particularly violent event on 19 April 2008. She feared that the father would kill her. The mother deposes that at the end of October 2008 she began to have serious recollections of the incident in April 2008 and was diagnosed with depression. [X] went into the father’s care at this time, and remained there. The mother deposes that on 22 November 2008 she attempted suicide as she had been not sleeping well and was desperate because she was not allowed to have contact with [X]. She deposes that she was suffering depression and experiencing flashbacks from the incident in April. On 30 November 2008 she became upset when she went to see [X] and had two glasses of red wine, and was then taken by ambulance to [C] Hospital. She describes her condition, as at December 2008, as being a “health breakdown” and started seeing her psychologist. In March 2009 she was taken to [S] Hospital by her parents because she was depressed, abusing alcohol and feeling suicidal. In May 2009 she went to rehab at [omitted], and was discharged on 29 May 2009. In June she was admitted to a rehab program in [omitted], eventually being discharged in August 2009. The mother deposes that she was admitted to deal with issues relating to alcohol, depression and past domestic violence.
The mother agrees that on 16 September 2009 she agreed to interim consent orders whereby [X] would live with her father. She then sets out a quite detailed history of the subsequent problems she experienced with having contact and communicating with [X].
It is important to pause and reflect on the mother’s evidence at this point. A fair summary of her evidence is that she perceives that her depression was associated with the violence that she experienced perpetrated by the father. What is by no means clear from the mother’s affidavit is the extent to which alcohol was a problem for her before this time, and specifically the extent to which it was attributable to the father’s violence. The significance of this is that the mother’s Counsel, Ms Eldershaw, in her closing submissions did seek to draw the link between the violence perpetrated by the father, and the mother’s depression and subsequent alcohol use. In this regard, the expert evidence does not establish any link between the father’s violence, and the mother’s depression and alcohol use.
The mother was cross-examined about her admission to hospital on 13 February 2011. She agreed that this hospitalisation was not deposed to in her affidavit. She explained this was because she thought her admission was attributable to the irritable bowel syndrome that she suffers, and not to any parenting issues. The mother explained in cross-examination that she went to hospital overnight because of bad pains in her stomach, and that she had a few drinks with neighbours across the road. She agreed that she had taken medication as well. She agreed that she was taken to hospital as there seemed to be a reaction between the alcohol she consumed and medication she had taken, but she still thought it was not relevant to put it in the affidavit as she suspected it was an irritable bowel syndrome problem. Indeed, the letter from the mother’s solicitors to the father’s solicitors dated 4 March 2011 (annexure E to the father’s affidavit of 28 April 2011) refers to this incident in the following way:
Our client advises she began to feel ill, requested an ambulance be called and was taken to hospital for reasons associated with her IBS.
The mother agreed in cross-examination that she had “a couple of drinks after my prescribed medication”. As she says she then had to go to the toilet as she had a bowel problem, but denies that the admission was a result of a combination of drinks and medication. Just pausing here, and dealing with the incident with the hospitalisation on 13 February 2011, it will become apparent from my discussion of the evidence of the maternal grandfather, and also the evidence of the notes taken on admission by the mother to hospital on that night, that the mother has greatly minimised this event. In short, the evidence indicates that she was brought in by ambulance with suspected intoxication, and that either the mother or her own father had indicated that she had been drinking a lot lately and had threatened her father and was violent towards family members. The mother’s failure to refer to what is clearly a serious and troubling incident in the context of this case is of concern.
The mother was cross-examined about the incident on 19 April 2008, at the wedding of the father’s sister, and before she was assaulted by the father. The mother agreed in cross-examination that she was irrational, upset and was intoxicated. The fact of the mother’s intoxication does not detract from the seriousness of the assault that was perpetrated against her later that night. However, it is significant in the context of the mother’s assertion, express or implied, that her alcohol abuse and depression was associated with this incident. She was clearly intoxicated at the wedding on 19 April 2008 and not even she asserts that this was linked to any behaviour on the part of the father.
I found the mother’s evidence in cross-examination about her hospital admissions between November 2008 and May 2009 to be largely unhelpful. She was not a good historian as to what occurred during this period. When one has regard to the documents produced on subpoena by the various hospitals, ambulance service, and doctors, it is not surprising. Clearly this was a very difficult and dark period for the mother. She at various times attempted suicide or had suicidal ideation. She was clearly depressed. She was clearly struggling with alcohol abuse. There were times when she was reported to be violent. There are references to drug misuse. On 23 November 2008, in the course of a detailed alcohol and drug assessment she explained that she had last had two and a half glasses of wine to drink on 22 November 2008 and had last consumed two cones of marijuana on that same day. She also agreed that she used amphetamines during 2008. Indeed, she reported that she used both amphetamines and cannabis over the last six or seven years. There are records of her treating professionals believing that she suffered from a personality disorder. There are also references in these records to the mother reporting to multiple suicide attempts during her life. There are also references to the mother suffering from bipolar disorder.
I am left with the strong impression that during this very dark period of the mother’s life she was reacting to the crisis situation that she perceived was created by [X] being in the father’s care and not being returned to her. However, the situation is more complex than that. There was a history of family violence perpetrated by the father. The mother herself reported a history of past drug and alcohol consumption and self-harm attempts. I find that during this period the father probably was restricting the mother’s contact with [X], but in circumstances where he was aware the mother was clearly unstable.
The mother was disingenuous in cross-examination in seeking to deny the accuracy of the various medical records created by totally independent persons whose role was to record what the mother said, as accurately as the circumstances permitted.
It was during this dark period in her life that the mother attempted to take [X] out of school and this resulted in a recovery order being made for her return to her father. In cross-examination she agreed that she was drinking heavily during this period. Indeed, she agreed that she was involved in an accident driving a vehicle with [X] in the car which was caused by her being heavily intoxicated. This accident caused injury to her, but not [X].
The mother then gives evidence of her rehabilitation attempts in 2009 initially on the Central Coast, and then in [omitted]. The documents produced on subpoena by these institutions perhaps give the clearest picture of the nature and extent of the mother’s drug and alcohol issues. For example, a letter of 15 April 2009 from the [omitted] Area Health Service, addressed to the Drug and Alcohol Rehab team provides as follows:
Thank you for considering Ms Clare for drug and alcohol rehabilitation. She is a 35-year-old woman with a 20-plus year history of heavy ETOH use who was brought in to hospital by her family on 25.3.09 with aggressive behaviour and thoughts of self-harm while intoxicated with 350 ml of spirits.
She has a background of bipolar disorder and alcohol dependence, but her family has noticed a significant decompensation over the last five-six/12 in her mental state and an increase in her alcohol consumption in the context of a relationship breakdown and custody dispute with ex-husband over their six-year-old daughter.
Both she and her family admit that her problems are greatly exacerbated by her escalating alcohol use. She reports drinking half-one bottle of 750 ml spirits most days. She has blackouts and is often aggressive and this is also when she has thought of self-harm.
I accept that the statement above is a summary rather than a report of what the mother said. However, a review of the totality of the documentary evidence in relation to the mother’s attendances at medical practitioners, hospitals, and rehab, confirm that it is an accurate summary, and it is based on a history provided by the mother.
Clearly the mother’s history involving drug and alcohol abuse and mental health issues is a long and complex one which not only predated the separation and [X]’s birth, but probably predated cohabitation with the father. In these circumstances it is almost impossible to determine the causation and/or exacerbating effect of family violence. Dr W did not give evidence about this and, indeed, given the mother’s very complex history, one wonders whether it would have been speculative in any event.
During cross-examination it was put to the mother that late in 2010 she was making derogatory remarks about the father to [X] during telephone conversations. It was also put to the mother that during a telephone conversation with [X] she asked her whether [X] had seen her, i.e., the mother, being arrested. It was also put to the mother that she had referred to the father in a conversation with [X] as an “arsehole”. She denied all of these assertions. She was quite categorical about this.
During Dr W’s evidence three taped telephone calls were played and introduced into evidence, without objection. In these telephone conversations the mother did discuss with [X] whether [X] had seen her arrested. The mother did call the father “an arsehole”, and the mother did sound during two of the conversations as if she was under the influence of some substance. The mother was plainly lying when she denied the matters put to her in cross-examination. This goes beyond being merely an unreliable historian that could be explained away by reference to the mother’s struggle with depression, drug and alcohol issues and her poor mental health. The evidence referred to above, however, is plainly false.
This casts a significant shadow of doubt over the mother’s evidence to the extent that it was challenged by the father. Thus, for example, the mother’s evidence is that after rehabilitation in 2009 she had overcome the problems that beset her in 2008 until she went into rehab. She says, for example, that she had acquired skills to deal with her abuse of alcohol and depression. She agreed she was still fragile, but her case was that there were no problems that would prevent her from having full time care of [X]. She agreed in cross-examination that, at least by February 2011 she should have been aware about the dangers of mixing alcohol and her medication. I observed that this did not prevent the incident on 13 February 2011 and her admission to [S] Hospital.
The mother believes that her capacity to care for [X] is not affected by her medication as she expects to be weaned off her sedatives and antidepressants. There was no expert evidence in this regard. I would be indeed sceptical about the mother’s capacity to do this. She is a fragile person by her own description.
As previously indicated there was no serious challenge of the mother’s evidence about the father’s family violence perpetrated on her. However, it was put to the mother in cross-examination that she was abusive of the father, especially in the post-separation period. She certainly agreed that there were conversations with or about the father or about the father’s partner at the time, Ms W, when she was abusive. Eventually the mother conceded that when she said to [X] that the father was “an arsehole” she was speaking in a calm and rational tone, and had not thought about the consequences. She agreed that she persisted in speaking to [X] about the incident, even when [X] told her that she had not seen the police arrest the mother. Her evidence in cross-examination that she persisted in telling [X] about it because she was worried about the impact on [X] of viewing the arrest is plainly illogical given that [X] had just told her that she did not see the event in question. It was put to the mother that she was determined to tell [X]. The mother denied this, but the circumstances strongly indicate to the contrary. The mother agreed that she had denigrated the father to or in the presence of [X] at least three or four times, when she has been upset. She agreed that the worst word she had used to the father was “cunt” and the worst word used to [X] about the father was “arsehole”.
In summary, it is actually difficult to be critical of the mother’s evidence, given her circumstances. I accept that she suffered severe family violence during cohabitation and after separation, and that this was perpetrated by the father. I accept that there were times when [X] witnessed this. I accept that the mother suffers from mental health issues including borderline personality disorder, depression, and that she continues to struggle with alcohol abuse. Despite her rehabilitation, the mother continues to struggle with these issues. She clearly does not understand the risk that is presented by mixing alcohol with the potent cocktail of medication on which I find she is dependent to maintain her physical and mental health. I find that the mother struggled with drug and alcohol and mental health issues throughout the period of cohabitation with the father. There is no evidence suggesting, or leading to the inference, that the mother’s present mental health was caused by, is associated with, or was exacerbated by the family violence that she suffered. The mother has minimised the nature and extent of the problems she faces in her own life, and the extent to which this affects her capacity to adequately parent [X]. There is no doubt that she clearly loves [X] and has much to offer her. I am satisfied that when the mother is supported by her own parents there is a relatively stable and safe environment for [X] to continue her relationship with the mother.
Evidence of Ms E
Ms E is the maternal grandmother. She swore an affidavit on 26 May 2011, after these proceedings had commenced, and the mother was granted leave to rely on the same, in part, on 27 May 2011. The maternal grandmother provides quite a detailed observation of the mother from November/December 2008. She paints a rather sad picture of the mother’s difficulty coping with the impact of separation, particularly from [X], depression and rehabilitation. In August 2009 the mother came to live with her and the maternal grandmother deposes that, “from that time I have noticed a marked and steady improvement in her behaviour and self-esteem”. She certainly paints a rosy picture about the mother’s progress from the period August 2009 to the date of swearing her affidavit.
At paragraph 24 of her affidavit, the maternal grandmother explains the regime she has put in place to ensure that the mother complies with her medication and treatment. At paragraph 25 she explained that the mother’s medication was stored in the pantry of the kitchen that they both used. The mother actually resides in a self-contained unit attached to the home where the maternal grandmother and grandfather live, but they shared a kitchen. The grandmother explains that she is familiar with the dosage of each of the mother’s medications, including changes made from time to time. There are a number of other important paragraphs from the maternal grandmother’s affidavit that I will reproduce:
26.In order to help Ms Clare over the past few years, I have learnt to recognise early warning signs when she might be at risk of relapsing into old patterns of behaviour. Such signs include her getting up late in the morning, becoming withdrawn, her speech becoming more rapid and louder, pacing or appearing agitated, going to bed during the day, isolating herself in her room and refusing to come out, smoking excessively and crying.
27.I recognize [sic] that stopping Ms Clare from engaging in this pattern of behaviour involves taking a pro-active stance on my behalf and I often try to monitor Ms Clare by:
(a)Checking in on her of [sic] she retreats into the self contained unit for prolonged periods;
(b) Checking the pantry, where her medication is stored, to make sure she is taking it;
(c) Going shopping with her so that we can have one-on-one time together to talk and;
(d)Searching the self contained unit for drugs or alcohol if I become suspicious of her abusing these substances.
28.I have also thrown away all alcohol in the house now, so there is no temptation for Ms Clare to drink.
29.If I see any of these signs, I immediately ask Ms Clare to go on a walk with me to [omitted] Beach, so that we can talk about the issues she is having. I find that Ms Clare responds well to rational and level headed support. She often just seems to need someone to listen to her talk about her problems and she is able to calm down relatively quickly. I always remind Ms Clare to ask me for help when she needs it too. Ms Clare had never had mental health issues previously to the incidents deposed above. I made the mistake previously of assuming that she would tell me if she was having trouble, but now I know what warning signs to look for.
She gave evidence of regularly seeing the mother under the influence of alcohol at times during cohabitation. She refers to two specific incidents – the motor vehicle accident, and at the wedding of her daughter [name omitted]. In relation to the former, a short distance away from where Ms C lived, the mother was involved in a motor vehicle accident in which the car she was driving ended up upside down in a ditch by the side of the road. She went with both the mother and [X] to hospital. The mother was subsequently charged with high range PCA and convicted. In cross-examination Ms C was not challenged on this evidence.
Ms C’s evidence about her daughter’s wedding is quite detailed and supports her assertions that the mother was quite intoxicated. She agreed in cross-examination, however, that there was no evidence to suggest that the mother had consumed drugs or was under the influence of drugs, as opposed to alcohol.
The paternal grandmother was challenged about the conversation she had with the maternal grandfather in which the latter referred to the mother as an alcoholic and drug addict. Ms C insisted it was correct, and even went on to explain precisely where the conversation took place, i.e. on her verandah. I accept her evidence in this regard.
I accept, however, that Ms C chose not to see certain aspects of her son’s behaviour, and of his relationship with the mother. I accept she knew her son was violent, but felt it was a matter for the mother to resolve.
Despite this I find Ms C to be a witness of truth. She sensibly withdrew her allegation about the mother being drug affected at the wedding. She maintained a balanced view about the mother, in circumstances where she believed the mother was struggling with alcohol. In the circumstances of this case I am satisfied that she will always be there for [X].
Orders in the Best Interests of [X]
I’m satisfied on the evidence that [X] in fact has a meaningful relationship, and a good relationship, with both her parents, as well as the maternal and paternal grandparents. I do not think this will change, irrespective of the orders I make. [X] appears, at least for the time being, to be a resilient child. For the reasons that I have discussed in the evidence above, there are elements of dysfunction in both her father and mother’s household. The relationship between her parents is a toxic one. Notwithstanding this, there is every indication that [X] continues to have a good relationship with her mother, and her father. I’m satisfied that none of the proposals advanced to the Court will change this.
I’m required to make the order that best protects [X] from harm. The harm in question is physical or psychological, and arises out of abuse, neglect or family violence. Both households are problematic. The question I have to decide is which proposal leads to [X] being exposed to the least risk of harm. In relation to [X] in her father’s household I’m satisfied there is no risk of [X] being neglected, and no risk of [X] being abused or exposed to family violence for the time being. I accept Counsel for the Independent Children’s Lawyer’s submission that, given the father’s propensity for violence, particularly in intimate relationships, there is a risk of violence to [X] once she becomes more self assertive. I accept, also, there is a risk that the father will enter into further violent intimate relationships, to which [X] will be exposed. At the moment the father is not in an intimate relationship, and [X] is not at a developmental stage where her own assertiveness will become a feature of household life in her father’s household. Thus, for the time being, I find there is least risk in the father’s household, but acknowledge there could be future risk. There are risk mitigating factors. The paternal grandmother impressed me as probably having the greatest insight of the three grandparents who I saw give evidence. She also impressed me as being the strongest, in terms of being prepared to stand up to her own son. Whilst I did not hear evidence from the paternal grandfather, I cannot overlook the fact that he seems to be the one who played the role of conduit and facilitator of discussions between the families in the past. I could find no evidence anywhere that was critical of the paternal grandfather. I do not accept the submission of Ms Eldershaw, on behalf of the mother, that I should draw an adverse inference because the paternal grandfather did not give evidence. In circumstances where, on the facts of a difficult case like this, even the evidence advanced in the mother’s case seems to suggest a positive and constructive role by the paternal grandfather, it is hard to see where there is the basis to draw an adverse inference. In any event, I’m satisfied that the paternal grandparents provide a risk mitigation safety net for [X], when she is in her father’s care.
By contrast, the risk issues in the mother’s household are much greater. She clearly has ongoing mental issue including her borderline personality disorder as well as depression. She is on extensive medication that helps her to deal with this, and provided she does not mix alcohol with her medication, there might be reason to be hopeful for the mother’s prognosis in the future. That the mother can change is demonstrated by the fact that, on the evidence before me, she appears to have overcome her past drug addiction issues. I’m satisfied that she was injecting drugs during the course of cohabitation, but the evidence suggests that this has not happened since separation. However, the real concern about the mother is in relation to consumption of alcohol. Professor H’s evidence, in particular, suggests the mother is not able to control this aspect of her life. The medical evidence suggested it has been long a standing issue for her, which she greatly minimised in her evidence before the Court. Even the mother seems to be unable to understand the risks inherent in mixing alcohol together with the potent cocktail of prescription drugs that she takes. It seems the combined effects on the mother of her prescription drugs, alcohol, and the irritable bowel syndrome that she also experiences, is a potentially catastrophic one for the mother. The evidence before me leads to the conclusion that the mother is unable to control her intake of alcohol. I am satisfied, because of this, that there is a real risk to [X] of abuse or neglect if she were left in her mother’s care for extended periods of time. There are not the same mitigating factors in the mother’s household, as there are in the father’s household. Whilst the maternal grandparents were most impressive in terms of their commitment to support the mother and [X], and their resilience in the face of the grief that I am sure the mother has subjected them to in her life, they lacked the objectivity to appreciate the risks to [X] in her mother’s care. I suspect they probably understood far better than the Court does now the nature and extent of the mother’s current struggle with alcohol abuse, but in their desire to support the mother’s case they were not in a position to present the facts objectively. The combination of the mother’s mental health and alcohol abuse problem on an ongoing basis means that there is the need to protect [X] from the risk of harm in her mother’s household. The risk in the mother’s household is greater than the risk to [X] in the father’s household.
I am required to take into account the views expressed by [X]. In
Dr W’s report she expressed the view to live with her father. I place no weight on this. In the circumstances of this case, especially the intractable conflict and toxic relationship between the parents, it would be most unwise for me to place any weight on what [X] has said. I decline to do so.
As I foreshadowed, despite all the difficulties in this case, [X] has a good relationship with both parents, and significantly, both the maternal and paternal grandparents. Indeed, I think [X] is very lucky girl in this regard. I am satisfied that, to varying degrees as I have discussed above, she has two sets of grandparents who are looking out for her. Perhaps at times neither of her grandparents have the requisite degree of objectivity, but for the most part they are there for her and will continue to be there for her irrespective of the orders that I make.
I’m required to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between [X] and the other parent. Despite all the father’s concerns about the mother’s drug and alcohol issues, and notwithstanding his very negative views about the mother, the fact is that he has persisted in facilitating [X]’s relationship with the mother. I’m satisfied that at times he has put up with harassment, abuse, and unpredictable behaviour by the mother in the post separation period. It is more likely than not that he is able to facilitate [X]’s ongoing relationship with the mother. That is not to say that there are no concerns about his attitude towards her and towards the responsibilities of parenthood. I have far greater concerns about the mother’s willingness to facilitate [X]’s relationship with her father. Clear evidence before the court indicates that she was willing to denigrate the father to [X]. I accept that a victim of family violence like the mother would have concerns about encouraging [X]’s relationship with the perpetrator of that violence, especially as [X] was clearly exposed to it. However, the mother clearly has her own problems which she has failed to acknowledge and from [X]’s perspective, she is entitled to move between two households where, at the very least, nothing is said to denigrate the other parent, even if it is not possible to be positive in this regard. On the mother’s proposal, therefore, I think [X] would be exposed to the greatest risk of denigration of the father. That is not to say there is no risk in the father’s household but rather that, on the evidence before me, there is less risk.
I am required to consider the likely effect of changes in [X]’s circumstances, particularly in terms of separation from a parent. The mother’s proposal presents the prospect for the greatest change. As it turns out, the other factors on which I rely suggest that it is not in [X]’s best interests to live with her mother, as her mother proposes. I see no evidence to justify a change in [X]’s circumstance, and in this regard I am particularly conscious of the role that [X]’s school seems to have been playing in maintaining her resilience in difficult circumstances. [X] seems to be doing exceptionally well at school. Whether she would be doing just as well at another school is not the question – why would I take the risk in changing her school, in order to the test the mother’s hypothesis in this regard? For as long as the father continues to live with his parents, or in the area, it is likely that [X] will continue to remain in her present school. I think this is very important and whilst I’m not prepared to make an order to restrain the father from changing [X]’s school (indeed, there is no evidence that this might happen) I urge the father to keep [X] there for as long as possible. Even if [X]’s school is just a haven shielding her from her parents’ intense conflict, nonetheless it seems to be a haven in which she is thriving.
The issues of practical difficulty and expense abound in this case, principally because of the distance that separates the parents, as well as the absolute imperative to keep the parents physically apart. Whilst I will discuss the details of this below, I unreservedly accept the Independent Children’s Lawyer’s submission that contact must take place at a contact centre. Whatever the issues of practical difficult and expense that are consequent of this, it is an imperative necessitated by the toxic relationship between the parents. In any event, amidst all the turmoil in this case, the parents, with the assistance of their own parents, have seemed to be able to navigate the issues of distance.
There are issues of parental capacity in this case. For the reasons that I have outlined above, I think the father will struggle to meet [X]’s emotional needs, though in this regard he will have the assistance of his parents, especially the paternal grandmother. I’m not concerned about his ability to meet [X]’s physical or intellectual needs. By contrast, I do have serious concerns about the mother’s capacity to provide for [X]’s needs, including emotional, physical and intellectual. Her mental health and alcohol issues, combined with the medical problems that she experiences, means that she will be less available for [X] than [X] needs. The mother quite plainly fails to appreciate the risks here. I’m satisfied that the mother is actually dependent on her parents to meet her own needs. I accept that the maternal grandmother has implemented a regime to ensure, for example, that the mother takes her medication and attends all of her medical appointments. I’m satisfied that the maternal grandmother does this because she is not satisfied that the mother would comply if left to her own devices. The maternal grandmother clearly has concerns about the mother’s capacity to look after herself in this regard and this is a factor I cannot ignore in assessing the mother’s capacity to care for [X]. I am not being in the least bit critical of the grandmother in this regard. Indeed, I think the mother is very fortunate to have parents like hers, supporting her as they have over many years.
I’m required to take into account matters of maturity, lifestyle and background of both [X] and her parents. Both parents struck me as being immature. [X] expects, and needs, her mother and father to act as mature adults who are able to focus on her needs, rather than on the parents’ needs. What these two parents have done to each other, and to themselves, during cohabitation and after separation reflects a singular inability to prioritise [X]. From [X]’s perspective, what is the benefit in the mother and father maintaining this visceral hate that they have for each other? Surely there is no benefit to [X]. One can only hope that the conclusion of this litigation may be a turning point for the parents.
Both parents have demonstrated gross irresponsibility when it comes to the responsibilities they have as parents in their attitudes to [X]. The father’s recording of telephone conversations, and the mother’s conduct during those telephone conversations, represent an undignified scramble by both parents to see who has the least insight about what [X] actually needs. Their inability to communicate is irresponsible. The father’s violence towards the mother was clearly irresponsible and insensitive to [X]’s needs. The father’s attitudes towards his intimate partners and his inability to control his anger is irresponsible and demonstrates an indifferent attitude to [X], and one which clearly does not understand the impacts on her of this. The mother’s past drug addiction issues, and ongoing struggle with alcohol, as well as her willingness to openly denigrate the father to [X] are further demonstrations of irresponsible parenthood. At the end of the day, there are concerns in relation to both parents. Indeed, the Court is truly caught between a rock and a hard place.
I’m required to consider that family violence. I am satisfied that I have done so. It is a rare case in which the serious family violence perpetrated by the father on the mother is not determinative of the outcome in relation to [X]. Now, I wish there to be no misunderstanding about this. The father’s violence was certainly physical, but not exclusively so. He was the primary perpetrator. It’s potency was high. I’m satisfied there was a pattern to it. The mother was sometimes violent, but it was not potent, it did not follow a pattern, and she clearly was not the primary perpetrator of violence. In other cases, where there were better alternatives for [X], I would be concerned about the risks to [X] of either being subjected to violence, or exposed to it. In other cases I would be exceedingly concerned about the very poor role model that the father presents for [X]. But, as I’ve indicated above, there are factors that mitigate against these risks to [X]. Moreover, the sad reality in this case is that the mother presents an alternative proposal that in fact raises greater risks for [X]. I repeat what I said before – it is a rare case where such violence is not determinative of the final outcome.
I’m required to make the order, if possible, that would be least likely to lead to further proceedings. Because of the risks that I find are associated with the mother’s proposal, I believe accepting the mother’s proposal would carry with it the likelihood of further proceedings between the parents. I have concerns about whether she could sustain [X]’s relationship with her father, and that raises the likelihood of contravention proceedings. I have stated concerns about the mother’s capacity to adequately care for [X], and this raises the possibility of re-litigation. In these circumstances it is more likely that there will be further proceedings if I accept the mother’s proposal.
Parental Responsibility
Based on all the evidence before me I’m satisfied that the presumption of equal shared parental responsibility is rebutted, and it would not be in [X]’s best interests for her parents to share parental responsibility. As I have previously said, the parents are singularly unable to communicate. Not only is there no trust between them, there is only the deepest level of distrust. Their relationship can only be characterised as toxic. They cannot come into physical contact with each other. There is ample evidence before me that telephone and text communication between the parents is likewise toxic and therefore detrimental to [X]. Moreover, I’m satisfied there is a risk that there will be times when the mother will simply lack capacity to be engaged in decision making about [X]. In these circumstances, the order that is in [X]’s best interests is that there be sole parental responsibility to her father. I will impose obligations on him to notify the mother and ensure that she has access to information about [X], especially in terms of her education and health. I recognise that the presumption should not apply in a case where there has been family violence and that, in this case, I am allocating sole parental responsibility to the parent who has perpetrated that family violence. I’m satisfied, however, that the Act does not preclude me from making an order for sole parental responsibility in any event. The circumstances of this case warrant this.
Equal Time or Substantial and Significant Time
Even though I’m not required to consider this, I record that equal time was neither sought, nor would it be in [X]’s best interest, or reasonably practicable. I accept that the father’s and Independent Children’s Lawyer’s proposal do not amount to substantial and significant time, as defined in the Act. I think that is an inevitable consequence of the geographical distance that separates the parents, as well as the nature of their relationship that mandates they not come into physical contact with each other. Thus, for example, the harsh reality in this case is that a supervised changeover service is needed and is not available on Monday mornings. This will limit the mother’s ability to be involved in [X]’s school life, but does not necessarily preclude her from seeking out information in this regard. Accordingly, substantial and significant time is not reasonably practicable in the circumstances of this case. Indeed, I doubt very much whether it would be in [X]’s best interests.
Frequency of [X]’s Contact with her Mother?
The Independent Children’s Lawyer proposes contact for three out of four weekends from 4:00pm on Friday until 4:00pm Sunday. The Independent Children’s Lawyer also proposes 10 days in the April and September school holidays, one week in the mid year school holidays, and half of the Christmas school holidays. Whilst it was not entirely clear what the mother’s alternative proposal for contact was in the event that I did not make the orders for [X] to live with her, my strong impression is that she supported the Independent Children’s Lawyer’s proposal in this regard. The father proposed the maintenance of the existing arrangement which provides for contact each alternate weekend and half the school holidays.
The clear benefits of the Independent Children’s Lawyer’s proposal is that it fosters and maintains [X]’s relationship with her mother which in itself offsets and mitigates the risk that [X]’s relationship with her mother is being undermined in her father’s household. The disadvantage in that proposal, however, is that [X] is spending so much time away from her father’s household and community that she misses out on the opportunities to socialise and maintain links with her local school friends, community etc.
Dr W’s evidence tended to support the Independent Children’s Lawyer’s proposal. I thought he was less than convincing in this regard and was minimising the significance to [X] of being able to form and maintain relationships in her local community.
As I have indicated above, I am less concerned about the father’s capacity to sustain [X]’s relationship with her mother, than the mother’s capacity to sustain her relationship with the father. The history of this matter to date demonstrates that despite the multiple layers of dysfunction apparent in each household, the fact is [X] has a good relationship with her mother. The father’s household must receive some credit for this. I also think that part of [X]’s resilience is attributable to the haven which is provided through her school, and the inevitable relationships she forms there. One must not also forget that [X] will shortly enter into a developmental stage where peer relationships become more important and the source of these relationships is primarily at her school and in her community. Overall, I do not accept there is an imperative to have contact three out of four weekends and more than half the school holidays. Any imperative certainly does not outweigh the disadvantages to [X]. Accordingly, I find that the evidence does not support increasing the frequency of contact to three out of four weekends, or above half the school holidays.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 12 December 2011
Schedule
Minute of Order proposed by Independent Children’s Lawyer
That all previous parenting orders be discharged.
That the father, in consultation with the mother in the manner set out in order 3, have sole parental responsibility for decisions relating to the long term care, welfare and development of the child of the relationship, namely [X] born [in] 2002.
That parental communication in respect of matters pertaining to [X]’s wellbeing, including physical, mental, emotional and educational, be effected in the following way:
3.1by letter for matters that are not urgent, which letters shall be expressed respectfully;
3.2by the paternal grandfather communicating with the maternal grandmother by telephone for matters that are urgent; or
3.3by the paternal grandmother communicating with the maternal grandfather by telephone for matters that are urgent.
That each parent communicate the following matters to the other in the manner referred to in order 3:
4.1The child suffering any medical emergency;
4.2The child requiring medical treatment;
4.3The child’s schooling, including providing information in relation to events to which parents are typically invited.
That the child live with the father.
That, subject to the provisions of order 9, the child spend time with the mother:
6.1during school terms, for three out of every four weekends from 4pm Friday until 4pm Sunday;
6.2from 4pm until 8pm on [X]’s birthday if her birthday falls on a weekend;
6.3subject to the provisions of order 8:
6.3.1 for 10 days in each of the April and September NSW public school holiday periods;
6.3.2 for one week in each of the June/July NSW public school holiday period; and
6.3.3 for one half of the NSW Christmas school holiday period;
at such times as are agreed, and failing agreement, commencing at 10am on the first Saturday of the relevant school holiday period;
6.4from 12noon 24 December 2011 until 5.30pm 25 December 2011 and each alternate year thereafter; and
6.5from 5.30pm 25 December 2012 until 5.30pm 27 December 2012 and each alternate year thereafter.
7. That the time the child spends with the mother:
7.1from 12noon 24 December 2012 until 5.30pm 25 December 2012 and each alternate year thereafter; and
7.2from 5.30pm 25 December 2011 until 5.30pm 27 December 2011 and each alternate year thereafter;
7.3from 4pm Sunday if [X]’s birthday falls on a weekend that she is spending time with her mother.
That, pending further order, all time the child lives with or spends with the mother shall be subject to:
8.1the mother living in the dwelling attached to the home of the maternal grandparents;
8.2the substantial presence of either of the maternal grandparents from 6pm until 8am;
8.3the mother complying with all reasonable requests of the maternal grandparents, which shall include directions in respect of the care of [X];
8.4the mother continuing to attend upon her treating practitioners, Dr T and Dr H and following all reasonable directions by them;
8.5the mother procuring the maternal grandmother’s undertaking to the court in the form annexed.
That there be no telephone communication between the child, [X], born [in] 2002 and her parents when in the care of the other parent.
That both parents do all things necessary and sign all necessary documents to immediately enrol to use the CatholicCare Supervised contact and changeover centre at Wollongong for the purpose of effecting change over pursuant to these orders.
That, to facilitate these orders, changeover shall occur at the CatholicCare Supervised contact and changeover centre in Wollongong, unless otherwise agreed between the parties.
That each parent is restrained from:
12.1being under the influence of alcohol in the presence of the child or while the child is in that party’s care;
12.2using, ingesting or administering to themselves any drug, other than drugs which are prescribed to the party by a medical practitioner and are consumed by that party is accordance with the terms of the relevant prescription;
12.3bringing the child into contact with any person under the influence of illicit drugs or alcohol;
12.4exposing the child to drug paraphernalia;
12.5exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child or any other person;
12.6causing or permitting the child to be transported by any motor vehicle which is driven by a person who is disqualified from holding a drivers licence;
12.7denigrating the other parent, or a member of that parent’s family, and in this respect, each parent shall immediately remove the child from the presence of any other person that does so.
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