Cyrus & Tabbener
[2021] FedCFamC2F 215
•8 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cyrus & Tabbener [2021] FedCFamC2F 215
File number(s): DGC 1682 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – parenting - interim parenting arrangements – where the Mother is seeking to move interstate with the children – where the Father is seeking immediate commencement of spend time arrangements with the children – where the Father has not seen the children in approximately 9 months – where the Father has returned positive test results for the use of illicit drugs – where the Mother alleges family violence perpetrated by the Father – consideration of the children’s best interests under section 60CC(2) of the Family Law Act 1975 – in the children’s best interests to live with the Mother – in the children’s best interests to commence spend time arrangements with the Father – Mother not permitted to relocate interstate with the children. Legislation: Family Law Act1975 ss 11F, 60CA, 60CC(2), 60CC(2A), 60CC(3) Cases cited: Goode v Goode [2006] FamCA 1346
Morgan v Miles [2007] FamCA 1230
Rollins v Van Hummell [2016] FamCA 916
Division: Division 2 Family Law Number of paragraphs: 70 Date of hearing: 6 October 2021 Place: Melbourne Solicitor Advocate for the Applicant: Ms La Greca Solicitor for the Applicant: Pentana Stanton Lawyers Solicitor Advocate for the Respondent: Mr Buckland Solicitor for the Respondent: Hartleys Lawyers Solicitor Advocate for the Independent Children's Lawyer: Ms Clark Solicitor for the Independent Children’s Lawyer: Clark Family Lawyers ORDERS
DGC1682 of 2021 IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)BETWEEN: MR CYRUS
Applicant
AND: MS TABBENER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.The children X born in 2014 and Y born in 2018 (“the children”) live with the Mother in the State of Victoria.
2.The children spend time with and communicate with the Father as follows:
(a)Saturday 9 October 2021 from 10am until 4pm, and each Saturday thereafter;
(b)Each week from 4pm on Thursday until 6.30pm;
(c)By Facetime each Tuesday between 5pm and 5.30pm;
(d)On 26 December 2021 from 10am to 4pm;
(e)In 2021 from 4:00pm to 6pm for X’s birthday;
(f)In 2022 from 10am to at 3:00pm for the Father and Y’s Birthday;
(g)at other times as agreed between the parties in writing.
3.Changeovers are to occur at the McDonalds Restaurant in B Street, Suburb C.
4.Pursuant to paragraph 2(c) herein the Mother must ensure the children are ready for the call and provide the children with a private room and quiet area to speak to the children.
5.The Father must continue to attend upon a psychologist to improve his capacity to deal more effectively with his anger.
6.The Father do all things necessary to attend upon a drug and alcohol counsellor nominated by the Independent Children’s Lawyer (“the counsellor”) for assistance with his illicit substance, and follow all recommendations of the counsellor, including but not limited to attendance, treatment and abstinence.
7.The Father undertakes hair follicle testing, to be paid for by the Father on dates as follows with results to be provided to all parties in the matter:
(a)On 15 December 2021 with a 4 cm segment of hair to be tested.
(b)In the month of March 2022 with a 4 cm segment of hair to be tested;
(c)In the month of June 2022, with a 4cm segment of hair to be tested;
(d)In the month of September 2022, with a 4cm segment of hair to be tested.
8.The Father make an appointment and attend for hair collection at an Australia Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)the Father is required to maintain his head hair at a length of not less than four (4) centimetres and neither head hair nor body hair is to be cut, bleached, or dyed between the date of this order and the time of collection of hair;
(b)the Father is required to make an appointment in sufficient time to comply with the dates in these orders with AWDTS by telephoning 13003378483 for the purpose of providing a hair sample for hair alcohol testing purposes;
(c)each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)the Father is to attend at an AWDTS or nominee for the purposes of hair drug testing pursuant to Order 7 and 8 and submit to the supervised collection of a hair sample from the father at the earliest available appointment time within the times specified at Order 7 and 8 herein;
(e)the Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to all parties, their legal representatives and the Independent Children’s Lawyer upon receipt of such test results; and
(f)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISP/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with International Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
9.In the event the Father complies with Order 7 and 8 and returns a result that is positive for any illicit substances, then the Father’s time with the children will cease until such time he is able to provide a clean hair follicle test result.
10.The parties communicate solely through the parenting application ‘My Family Wizard’ except in the case of emergency whereby such communication to occur by way of text message.
11.Within 7 days of the date of these Orders the Mother provide the Father with:
(a)A copy of all of X’s school reports and school photos (if any) for 2021;
(b)The name and details of X’s current school.
12.Both parents do all things as are necessary to ensure:
(a)Each parent is listed as a parent in X’s school enrolment and any enrolment of Y for childcare and or day-care.
(b)Each parent can receive (at their own expense) copies of all newsletters, notices, photographs, and other information provided by the school including access to any online portal.
(c)Both parents and their partners and extended family be able to attend all school events including school assemblies, sports days, swimming carnivals, working bees, parent teacher interviews, concerts, presentations, and any other event to which parents are normally invited to attend.
(d)A copy of these Orders be provided to X’s current school and shall be the authority for the parents involvement in accordance with these Orders.
13.Within 7 days of the date of these Orders the Mother provide the Father with:
(a)Details of Y’s hearing or other specialist appointments, treatment, prognosis, and any other medical treatments received by Y for 2021.
(b)Details of X’s counselling and any other medical treatments received by X for 2021 including contact details of medical treaters and counsellors.
14.Each parent shall advise the other of any major or specialist medical referrals for the children and co-operate to reach agreement as to the nominated specialist or treater.
15.Each parent be at liberty to enquire with any medical or allied health treaters as to the children’s treatment, prognosis, medications, interventions of the children at their own expense.
16.Each parent shall notify the other of any medical emergency, serious injury of illness of the children including any emergency department attendance or admission as soon as possible and, in any event, no longer than 4 hours after such occurs including the details of the treater, hospital or other and both parents be at liberty to attend the hospital if the child is hospitalised.
17.Both parents be at liberty to provide a copy of these Orders to any medical treater as the authority for the parent’s involvement in accordance with these Orders.
18.The Mother do all acts and things necessary to ensure the child X attend upon Complete Children’s Health in relation to her behaviour issues.
19.The Mother do all acts and things necessary to ensure the child Y attends upon his speech Therapist from D Clinic.
20.The Father continue to attend and complete a Men’s Behaviour Change Program and file evidence of his completion of the course with the Court.
21.The parties do all acts and things necessary to enrol and complete a Parenting Orders Program and provide evidence of such completion to the solicitors for each party.
22.The parties are both restrained from:
(a)Denigrating the other or any members of the others family to or in the presence of the children, and from permitting anyone else to do so; and
(b)Discussing adult issues with the children, including these Court proceedings, and from permitting anyone else to do so.
23.The matter be listed for mention before Judge Howe on 2 February 2022 at 9:30am.
AND THE COURT NOTES THAT:
A. The child X is currently not enrolled in any school.
B. The Father is seeking to reside near the children.
C. The Court will consider listing the matter for final hearing at the next mention date.
D.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the party in default or their solicitor may be ordered to pay the costs of the other parties wasted as a result of the default.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
H.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
I.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
J.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
K.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cyrus & Tabbener has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE, REVISED FROM THE TRANSCRIPT
JUDGE BLAKE:
INTRODUCTION
This matter concerns the interim parenting arrangements of the children X born in 2014 (‘X’), and Y born in 2018 (‘Y’).
BACKGROUND FACTS
The parties met in 2011. There is a dispute as to when the relationship commenced. The Father says it commenced in 2011. The Mother says it commenced in 2013.
X was born in 2014. Y was born in 2018.
Separation occurred in 2018. The Mother says separation occurred in July 2018, and the Father says separation occurred in October 2018.
The parties are in agreement that, following separation, the Father has spent time with the children every second weekend from Friday afternoon until Sunday afternoon. The Father also spent regular time with the children during school holidays. The Mother says that this time occurred at the paternal great grandmother's residence.
It seems to be common ground that issues arose with the spend time arrangements, however, the parties persisted with them for some time. The arrangements were, at times, varied, with the Mother saying after several incidents, she did not allow the children to spend more than three days with the Father during any one period of spending time with him.
In April 2019, the Father sent the Mother a photograph of a knife by text message. The Father does not deny the incident occurred. The incident resulted in the Father being subject to an interim intervention order, which has since ceased.
The Father ceased spending time with the children following an incident between the parties on Boxing Day 2020. I will address that incident later in these reasons. The incident resulted in a further intervention order being issued against the Father, which remains in force.
Shortly thereafter in February 2021, the Mother unilaterally relocated to Queensland with her mother, the children, and her child from another relationship, E. She did not inform the Father about this or consult with him.
Proceedings were commenced in this Court by the Father on 27 April 2021. At that time he sought, among other things, an urgent order that the children be recovered by officers of the Australian Federal Police from the State of Queensland and be returned to the State of Victoria.
After initial return before a Registrar, the matter came before me on 20 May 2021. On that date, I made a number of procedural orders and an order that the parties attend for a conference before a family consultant, under section 11F of the Family Law Act1975 (‘Act’) on 25 August 2021. I also made orders by consent that the Mother and the children return to the State of Victoria. Further orders were made by consent as follows:
(a)that the children spend FaceTime on two occasions each week with the Father;
(b)that the Father attend upon a psychiatrist for a report; and
(c)that the Mother be permitted to continue to reside in Queensland until her return to Victoria.
While the Mother consented to an order that she return to Victoria, there was a dispute about the date by which she should return. I ordered the Mother to return to Victoria by 2 August 2021, in time for the conference with the family consultant.
On 14 July 2021, the Mother filed an Application in a Case. In that Application, she sought orders that she and the children return to the State of Victoria no later than 28 days following the Department of Health and Human Services in Victoria declaring Queensland and New South Wales a green zone pursuant to the Victorian travel permit system. The Mother also sought that the section 11F conference be vacated.
The Application in a Case brought by the Mother in July of this year was filed in circumstances where she was of the view that she was unable to return to Victoria by road, within the timeframe previously set by the Court, because of the COVID-19 outbreak that had occurred in Queensland at that time. In her supporting affidavit, she deposed to the practical difficulties of driving through Queensland and New South Wales, given the border restrictions in place at the time, and the fact that if she drove, she would need to quarantine on arrival in Victoria for 14 days. She further deposed that if she returned by road and entered quarantine, the people she would be residing within Victoria would also be required to quarantine. The Mother also deposed to her concerns about the effect quarantine would have on her health and the children's health.
The Mother’s Application in a Case came before me on 26 and 27 of July 2021. During the course of the hearing, it emerged that the Mother was not barred from entering Victoria by air, and could return by air without quarantining in Victoria. It emerged that the practical difficulties the Mother and the children would face if they were to return by road through New South Wales, could be addressed if the Mother and the children were to travel back to Victoria by airplane. She deposed, however, that she could not afford to fly with her belongings back to Victoria. The matter was adjourned overnight to enable the Father to obtain evidence as to the costs of relocating the Mother and the children's belongings and the Mother's car.
I subsequently made orders that the Mother was, to return to Victoria by 11 August 2021. I also made an order that the Father would contribute the sum of $2,000 to the Mother's costs of relocation. I further noted that those orders were made after the Father had offered to make those contributions.
The Mother and the children subsequently returned to Victoria. They attended the conference with the family consultant on 25 August 2021, and a written report (‘section 11F report’), was prepared.
The matter then came before me on 10 September 2021 following the section 11F report. The Mother's primary position was that she sought an order permitting her and the children to return to Queensland. In fact, her position on that day was effectively that, whatever the Court may order, she intended to return to Queensland. I cautioned her about the potential consequences for her and the children of such a course of action.
The Father, for his part, sought orders that he immediately commence spending time with the children in circumstances where he had not spent time with them for approximately 9 months. The time he sought was an initial period of one week of the upcoming school holidays and, thereafter, each weekend. The Father sought those orders in circumstances where a hair follicle test conducted in July 2021 had indicated that he had consumed methamphetamine and marijuana.
Given the complexity of the matter, the polarised positions of the parties, the view of the section 11F consultant that certain assessments were necessary, and the state of my list on that day, I adjourned the matter. Initially, the matter was adjourned to 30 September 2021, however with the consent of the parties it was ultimately adjourned to 6 October 2021. I also made orders that the Father undertake a further hair follicle drug test prior to the matter returning before me, and that an Independent Children's Lawyer be appointed.
THE POSITION OF THE PARTIES
The Father has filed various affidavits in this proceeding, and I have reviewed all of the material he has filed. When the matter came on before me on 6 October 2021, the Father's position was that he sought the orders that had been proposed by the Independent Children's Lawyer (‘ICL’). Those orders, in substance, were as follows:
(a)that the Mother and the children remain living in Victoria;
(b)that the Father spend time with the children each week from Saturday 12 noon till Sunday 12 noon for four weeks;
(c)that the Father see the children each week from 4 pm to 7 pm Thursday, and talk to them by FaceTime each Tuesday;
(d)that, following the expiration of the four-week period, the Father commence spending time with the children on alternate weekends from 4 pm Friday until 6 pm Sunday; and
(e)that provisions be made for him to spend time with the children on special occasions and during the long school summer holidays.
As an alternative to the above, if I permitted the Mother to return to Queensland, the Father proposed that X commence living with him immediately, and that Y transition into living with him over a 3 to 4 month period, with the children to spend time with the Mother in the reverse arrangement that had been proposed by the Mother.
The Mother has filed various affidavits in this proceeding, and I have read them all. The principal relief that the Mother sought, in substance, is as follows:
(a)that the Mother return to Queensland with the children;
(b)that the Father spend time with the children during the school term from 7.30 pm on a Friday until 3 pm on a Sunday on the third and sixth weekend following the commencement of the school term;
(c)that the Father spend time with the children during school term holiday periods from 12 pm on the first Saturday of the school holidays until 5 pm on the Saturday immediately preceding the commencement of the new school term;
(d)that the Father spend time with the children during the long summer holidays from 12 noon on Boxing Day until 5pm on the Wednesday immediately preceding the commencement of the school year.
The Mother also put an alternative proposal. That proposal was as follows:
(a)that X live with the Father in Victoria;
(b)that Y live with the Mother in the State of Queensland;
(c)that the parties communicate using FaceTime with the child not in their care on three occasions each week;
(d)that X and Y spend half of each school holiday period together with one parent, and then spend the other half of each school holiday period with the other parent.
The Mother’s proposals that the children spend time with the Father were based on the Father returning drug screens that indicated he was not an unacceptable risk to the children.
The Mother did not press for an order that she have sole parental responsibility for X. She did however, press for an order not flagged in her Response, that if the children spend time with the Father, that time should not occur in the presence of the Father's partner.
APPLICABLE PRINCIPLES
Cases such as the present one involve the application by a parent to relocate to another area with the children. These cases are amongst the most difficult cases that this Court is required to determine. Whilst such matters may be described as relocation cases, there is in fact no such thing, and there is not a separate category of case. At the end of the day, it is first and foremost a parenting case, and guidance on how to resolve it is to be taken having regard to the Act and relevant authorities.
In Morgan v Miles [2007] FamCA 1230 Boland J gave detailed consideration to how a Court should approach the making of parenting orders where the relocation of a parent is imminent, or has occurred. I have had regard to the comments of Boland J, particularly in paragraph [65] and paragraphs [72] to [88]. Further, in Rollins v Van Hummell [2016] FamCA 916, at paragraphs [2] to [13] Gill J usefully summarised the principles to be applied and the approaches available to a Court in a case such as the present one.
The present matter concerns the making of interim orders. The Full Court, in Goode v Goode [2006] FamCA 1346 set out at paragraphs [81] and [82], the approach to be adopted in interim parenting matters. The Full Court emphasised that the legislative pathway must be followed. Among other things, the Court noted that it is necessary to identify the parties' competing proposals, the issues in dispute and the agreed or uncontested facts, before turning to apply the law. The Full Court recognised interim cases can be difficult, as there are often conflicting facts, little helpful evidence, and disputes between the parties as to what constitutes the best interests of the children. The Court cannot determine factual issues in dispute in an interim hearing.
In determining interim parenting matters, section 60CA of the Act provides that the Court must regard the best interests of the children as being the paramount consideration. In determining the best interests of the children, there are two primary considerations and several additional considerations to take into account. The two primary considerations are the benefits of the children of having a meaningful relationship with both parents, and the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. I am required, pursuant to section 60CC(2A) of the Act, to give greater weight to the second of those two primary considerations. There are then the additional considerations that the Court is required to take into account. They are set out in section 60CC(3).
THE EVIDENCE
The section 11F Report
A written report was prepared by the family consultant. In that report, the consultant notes the following:
(a)that the Mother claims to be a victim of family violence and coercive control, and those claims are generally denied by the father, and there are conflicting accounts of what occurred on Boxing Day 2020;
(b)that the Mother raised major concerns about X’s violent and often unmanageable behaviour, and is very concerned that X has hurt her siblings, and may continue to do so;
(c)that the Mother is concerned that Y can display aggressive behaviour;
(d)that the Mother is uncertain as to the causes of the children’s behaviour, but is very mindful that if not treated, the problem will continue to grow;
(e)that the Father does not observe the over-aggressive or unmanageable behaviour in X;
(f)that both parties acknowledge a history of substance abuse;
(g)that the Father acknowledged mental health issues in the past;
(h)that the Mother, while intent on relocating to Queensland, questioned whether X might be better off staying with her father for an extended period of time and whether this might assist with her problem behaviour;
(i)that the Mother was of the view that video calls with the father were being well managed and that, while Y is difficult to engage, X loved talking to her Father; and
(j)that while Y was not interviewed, X was. X indicated to the consultant that she enjoyed spending time with her Father, and would like to spend time with him for a while, but she did not wish to upset her mother. X also brightened at the prospect of seeing her grandparents and extended family.
The family consultant summarised issues facing the children in paragraphs [68] to [77], which are set out below:
68. These children are young and in the writers opinion quite vulnerable.
69.Y has reported speech delay and X, according to the mother, exhibits quite serious behaviour management issues that can turn to violence at times.
70.It is also noted that E is only one year old and the mother states both Y and E have been exposed to X’s outbursts.
71.It is noted that X has been subject to much change in her short life, that not only have her parents separated but she has a step sibling and has involved in several moves, including separation from her father and paternal family which, by the father’s account, added stability to her life.
72.From the mothers account she has also been witness to aggression and violence.
73.Children of all ages need to feel safe in their environment(s), to have consistency of care, stability of carers, and regular connection with their attachment network.
74.In the writers opinion this is likely to be even more important for these children.
75.Assessment for X apparently began in Melbourne prior to Christmas, with some further contact with a psychologist in Queensland.
76.X also apparently completed one year of prep at F School prior to moving to Queensland. The writer is unclear what the arrangements were for X in Queensland, but currently she is not in school, and in many ways like her mother, remains somewhat in limbo.
77. X presented as eager to see her father and did not express any concerns.
The family consultant also set out future directions, at paragraphs [79] to [90], which are set out below:
79.In the writers opinion this is a complex matter that requires further assessment before any longer term decisions could be made.
80.The writer would also suggest the appointment of an Independent Children’s Lawyer.
81.It is noted that results of the fathers Hair Follicle Test were not available at the time of this Conference, nor had the father yet to attend appointments for his psychiatric evaluation.
82.It is also noted that reconnection with the father and X (in particular) through FaceTime has, according to all accounts, gone very well.
83.It would also appear that the father had regular time with the children up until the incident on Boxing Day 2020 in the mothers subsequent moved to Queensland.
84.Both parties hold very disparate accounts of the Boxing Day incident as well as the level of risk the mother and the children may have been subject prior to this, and the Court may well have to explore the veracity of these accounts.
85.The mother raises serious concerns about X’s behaviour, the causes of which are likely multifaceted. The assessment and treatment process for X also appears to have been interrupted and incomplete.
86.The mother desperately wishes to return to Queensland and has even questioned whether X may be better in the father’s care in the interim.
87.In the writers opinion stability and consistency is needed above all else for these children as well as a joint focus on optimal ways of managing X’s behaviour, including assessment and treatment.
88.In the writers opinion unless the court determines significant risk, this is best achieved with the father being meaningfully involved in the children’s lives
89.Therefore, while the writer is very sympathetic to the mother’s circumstances, and is uncertain what is practically possible for the mother at the present time, the writer does not believe it to be in the children’s interest in the interim, to remain in Queensland with little connection or input from their father or extended paternal family.
90.The writer further notes that the father had moved to a location that he believed to be closer to where the mother had intended to move (prior to Queensland) and, within local limits, would still move within vicinity of the children to assist long term with care, schooling and other parental responsibilities.
The Psychiatric Report of the Father
The Father attended upon Dr G (‘Dr G’) for a psychiatric evaluation. A report from Dr G dated 31 August 2021 was annexed to an affidavit filed by the Father. Among other things, Dr G recorded that:
(a)‘the father does not currently suffer from any psychiatric disorder’;
(b)‘Over the last five years, he has had recurrent bouts of anxiety and depression, and used illicit substances’;
(c)At paragraphs [55] and [57]:
55.Over the last five years, his recurrent bouts of anxiety and depressive symptoms are most probably episodes of Adjustment Disorder with lowered mood and anxious distress. They responded within a relatively short period of time, usually to a combination of counselling and antidepressant medication, and only needed a brief period of time off work. There is a possibility of him suffering from a recurrent Depressive Disorder, but his symptoms did not appear severe or enduring enough to merit such a diagnosis. He has never been admitted to hospital. Despite being on the Lexapro, he still developed further symptoms. This is despite his episode of suicidal ideation in 2018 when he sought help, and was managed as an outpatient. There has been a highly significant association with loss or rejection in each episode, which has involved the paternal grandfather, the mother or the children.
…
57.It is likely that Mr Cyrus’ childhood history of exposure to domestic violence and lack of consistent parenting is a significant predisposing factor for his marked reactions to loss, substance use and aggressive outbursts. It is possible that this is mediated through him displaying Cluster B personality traits of affective dysregulation, impulsivity and fears of abandonment.
(d)that the Father remains at risk of developing further episodes of adjustment disorder, and he may have minimised his use of drugs;
(e)At paragraphs [61] to [63]:
61.Mr Cyrus remains at risk of developing further episodes of an Adjustment Disorder, in the event of further substantial losses. This might include the ending of his relationship with Ms H, if this were to occur. In this eventuality, he is likely to seek psychological and/or pharmacological treatment with a similar course as in previous episodes. It is noteworthy, that Mr Cyrus, despite suffering considerable childhood trauma and neglect, has not sought long-term psychotherapy at any time in his life, with the aim being of reducing his tendency to affective outbursts and improving his capacity to deal with loss. He remains vulnerable to mood and anxiety problems, substance use and angry outbursts without longer and more intensive interventions.
62.As regards his drug use, although Mr Cyrus denied any regular use of drugs since aged 22 years old, he gave the impression that he may have minimized his use of drugs, and did not see using drugs intermittently as a problem. He has not sought help from Drug and Alcohol services at any time in the past. There has only been the single Hair Follicle Test in 2021, which would have only covered the period of the 3 months prior to the test. There have been no other drug screens to my knowledge, so I only have his statements on which to make an assessment of his drug use. I suspect that Mr Cyrus will continue to occasionly [sic] use methamphetamine and possibly marijuana as well. I note, however, that his use is usually confined to his camping trips, and not in the home when Ms H is around. He remains at risk of further drug use, but it is not clear whether his use would increase to such an extent that it would become a regular habit, enough to develop a relapse of his Substance Use Disorder.
63.Mr Cyrus denies the allegations of the mother that he was physically aggressive to the children, particularly Y. He admits to physically scuffling with the mother at the handover on Boxing Day 2020 in front of the children, and punching a hole in the wall on another occasion. These angry outbursts are due to affective dysregulation, and are congruent with Cluster B personality traits, that have been present for all his adult life. They have arisen from his traumatic childhood experiences. Although he may be able to develop strategies to deal with his dysregulation, and consequently improve his behaviour, his personality traits are enduring. If Mr Cyrus chose to pursue Psychotherapy, it is likely that these traits, and hence his propensity for affective dysregulation, would be ameleriorated [sic].
(f)He recommends ongoing hair follicle tests for the Father, a referral to a drug and alcohol service if there is a further positive test for illegal drugs, completion of a Men’s Behaviour Change program and psychological treatment to improve his capacity to deal more effectively with his anger.
The Hair Follicle Test Results
In the course of this proceeding the Father has now submitted two hair follicle test results. The first was conducted on 21 July 2021. The Father returned positive test results for the use of methamphetamine and marijuana. The Father underwent a second hair follicle test on 15 September 2021 and returned a positive result for the use of marijuana. The Mother also undertook a hair follicle test which returned a negative result for any illicit substances.
The Mother’s evidence
The Mother has filed various affidavits in this proceeding. In those affidavits she deposes, among other things, that:
(a)the Father has been hospitalised previously for mental health concerns and has used illicit substances;
(b)during the relationship she was primarily responsible for the day to day care of the children;
(c)she was subjected to, and the children were exposed to, family violence. She deposes that the Father would smack Y, that he would yell and become aggressive and that he punched a hole in the wall on one occasion;
(d)she was aware of the Father's drug use during her relationship with him;
(e)in April 2019, following separation, the police obtained an intervention order against the Father after he sent her a photo of a knife;
(f)on Boxing Day 2020 she was subjected to serious family violence from the Father. She deposes, among other things, that the Father swore at her, abused her mother, screamed at her and her mother, pulled X out of the car, told her that, "X is coming with me and you will never see her again", raised his fist to the Mother, and hit her in the face when she tried to stop him from hitting her mother. The Mother says all of this occurred in the presence of the children;
(g)following the incident above the Father was served with a further intervention order by the police which is final;
(h)the communication between the father and the children that has been ordered by the Court has been going okay;
(i)X remains physical with the mother and has picked up glasses and thrown them, and X has been aggressive with other children and has escaped from the Mother's care when being disciplined;
(j)she is supportive of her children spending substantial and significant time with the Father provided his mental health and drug use does not present an unacceptable risk to them;
(k)she remains in fear of the Father and that her mental health has deteriorated since her return to Victoria;
(l)she lived in Queensland between 2008 and 2011;
(m)she moved to Queensland in February of this year with her mother, who moved there, and that she has the support of some maternal family there including two brothers, and that she has just commenced a relationship with a new partner in Queensland;
(n)she is in receipt of Centrelink benefits; and
(o)if the Court is of the view that the children remain in Victoria, X may benefit from living with the Father on an interim basis due to behavioural issues she is experiencing, but that she does not believe it is in Y's best interest to remain in the State of Victoria.
The Father’s evidence
As I stated, the Father has filed various affidavits in the proceeding. In those affidavits, among other things, the Father says:
(a)while admitting an incident occurred on Boxing Day during which the parties yelled at each other, he denies the particulars of the Mother's allegations of what occurred on that day and says they have been greatly exaggerated;
(a)in his affidavit of 19 May 2021 that he has not used the drug ‘ice’ since November 2018 and that the Mother's allegations about his ice use have been greatly exaggerated;
(b)in his affidavit of 19 May 2021 that he last smoked marijuana on 21 March 2021 and was committed to ceasing his use of it;
(c)in addition to denying the Mother's account of events on Boxing Day, denied in his affidavit of 19 May 2021 that he smacked the children, that he punched a hole in the wall, and that he would get angry at the mother for studying;
(d)that he denies having issues with anger, and that while he admits to some episodes of being angry he says he has never committed family violence;
(e)in his affidavit of 24 August that during Facetime calls that have been occurring the Mother has, effectively, encouraged the children to tell the Father that they do not want to return to Victoria;
(f)that X is involved with him during the Facetime calls but Y is less involved and the Facetime calls have been difficult;
(g)in his affidavit of 8 September 2021 in connection with the positive methamphetamine and marijuana hair follicle test conducted in July 2021 that he used these substances on a camping trip in March 2021 and that he has not used any illicit substances since that time.
The Court cannot make findings of fact in an interim hearing. It is important, however, to record the following observations about the evidence given by the parties on affidavit.
It is clear that the Father has not been frank or candid in relation to the affidavit material he has filed with the Court. That might be said to be putting it mildly. He has deposed to various matters that have been shown to be incorrect. It appears he was not honest in his affidavit of 19 May 2021 when he said he had not used ice or cannabis since November 2018. The results of the July hair follicle test and his statements in his subsequent affidavit of 8 September 2021 bear that out. It appears that he was not honest in his affidavit of 8 September 2021 when he said he had not used any illicit substances since March 2021. The hair follicle test results of 15 September 2021 bear that out.
There are also other problems with the Father's evidence. In his affidavit of 19 May 2021, he denies punching a hole in the wall as alleged by the Mother. Dr G in his report, states that the Father admitted to punching a hole in the wall on one occasion. Further, the Father, in his account of the Boxing Day 2020 incident in his affidavit says, effectively, that the incident was largely verbal, mutual yelling back and forth, and denies hitting anyone. One reading of the report of Dr G is that the Father admitted to Dr G that a physical scuffle occurred on that day.
I observe that these appear to be not just matters of a lack of candour, they appear to be deliberate attempts to mislead the court. The Father needs to be aware that if he continues along this path he runs the very real risk of committing perjury or contempt which could lead to the imposition of a significant financial penalty and/or imprisonment. He can regard himself as being on notice about these matters. The Court will not hesitate to take action against him if I find there has been any further lack of honesty from him, and that lack of honesty rises to the level of perjury or contempt. I expect his lawyer to advise him of these matters.
All of the matters above cause me to have serious doubts about the credibility of the Father and the truthfulness of his evidence. The matters about which the Father has been untruthful are serious. In short, if the Father is prepared to tell untruths about those matters, it raises a real question as to what else he might not be being truthful about.
The concerns I have about the Mother and her evidence are of a somewhat different character. The Mother claims she supports the children having a substantial relationship with the Father, but many of her actions, and in particular her move to Queensland, suggest another agenda. She unilaterally relocated to Queensland without notifying the Father. She sought to delay her return from Queensland after she agreed to return to Victoria. On the last occasion the matter was before me she indicated through her lawyer that she would return to Queensland, whatever the Court ordered, because she regarded that as being in the children's best interests. This last aspect is particularly troubling. If the Mother is prepared to state to the Court that she will ignore Court orders that are made after a contested hearing about what might have been in the children's best interests, and substitute her own view of the children's best interests for the Court's view, there cannot be any confidence moving forward that the Mother will adhere to Court orders which may provide for the children to see their Father. In that context it also raises a real question about whether her statements that she supports the children having a relationship with the Father can be believed.
THE CHILDREN’S BEST INTERESTS
Matters where the Court is required to rule on whether a parent may relocate on an interim basis are, as I have said, difficult. The difficulties are much greater in this case given the reservations I have expressed about the evidence and credibility of these parents. This is a case in which the two primary considerations under section 60CC(2) of the Act are firmly engaged and I propose to deal with each in turn.
One of the central planks of the Mother's case is that the Father presents a risk to the children because of his drug use and mental health. While the Father has suffered from mental health issues and remains at risk in the manner identified by Dr G, it is Dr G's opinion that he does not suffer from any psychiatric condition. Further, Dr G advises that while the Father may have experienced some episodes of adjustment disorder, these have generally been managed, and while he might have experienced some issues caring for the children during these episodes, there would only have been a mild impairment of his parenting capacity, usually being more frustrated at times.
On the drug use, there seems little doubt the Father has continued to use cannabis, including in the very recent past. He has used methamphetamine at least as recently as March this year. The evidence suggests perhaps that methamphetamine use is limited, and at the time of the hearing had ceased. The cannabis use is continuing. Dr G is of the opinion the Father was likely minimising his drug use but also expressed the view that it was not clear whether it would increase to such an extent to become a substance use disorder. I observe this opinion of Dr G was not, however, informed by the results of the most recent hair follicle test results that I have before me.
It is also relevant to take into account the following in relation to any risks posed from the Father's drug use. First, the Mother was aware of the Father's drug use during the relationship. Despite that, after separation, she agreed to the Father spending alternative weekends with the children. Second, the Mother has told the section 11F consultant that X may be better off living with the Father. Third, the Mother's primary proposal before me contained in her Response is that both children spend substantial time with their Father if hair follicle drug testing raises no significant concerns.
The Mother's alternative proposal before me is that X live with the Father if, among other things, the Father's hair follicle drug test raises no significant concerns. Exactly what is meant by ‘significant concern’ is not explained. In her written Outline of Submissions filed a day after the Response was filed, she stated that the Father must produce a clean hair follicle test result and the material should not show an unacceptable risk.
It is clear the Father continues to use illicit substances, and in particular cannabis. He has done so notwithstanding these proceedings have been on foot and knowing he will have to undergo testing. In my view, the Father's drug use does present a risk to the children. Until he cleans up his act, any time he spends with the children should, in my view, be limited to periods of daytime contact only. There should be no overnight time and certainly no progression of time until he demonstrates that he has his apparent drug issues under control.
There is then the question of family violence. I give significant weight to the Mother's account of the incident on Boxing Day 2020 given the concerns I have expressed about the honesty of the Father, the report of Dr G, and given the Father's previous conduct of sending a picture of a knife to the Mother. I observe the Father consented to a final intervention order on a ‘without admissions’ basis arising from that incident. The Boxing Day incident occurred in front of the children. If any spend time arrangements are to occur they need to be structured in a way that limits any risk to the Mother, for example, changeover occurring in a public place with CCTV surveillance. Clearly, any family violence or anger issues needs to be addressed by the Father if he is not to present a risk to the children and potentially to the children's Mother who is their primary carer.
Finally, the Mother raised concerns about the risk posed by the Father's partner, Ms J. Victoria Police records were produced which show Ms J allegedly was involved in incidents that could only be described as serious. I observe, however, that Ms J was neither charged nor convicted of any offence.
There is then the benefit to the children of having a meaningful relationship with both parents. Under the proposal of the Father and the ICL, time between the children and the Father would commence slowly. That is appropriate, particularly for Y. It will allow the Father to re-engage with the children and develop a relationship with them. I regard that as important in circumstances where the children were unilaterally removed by the Mother. The Mother's primary proposal gives the Father substantial holiday time. I accept that that time is substantial, but there are two matters.
First, the Father would not have any time with the children, given his positive cannabis test result, if I accepted the Mother's proposal. The Mother's proposal is limited to exactly what it says it is limited to, that is, holiday time. There is no week day time. It does not permit the Father to slowly build up time with the children and to re-engage with them so that they are comfortable with him following the Mother's removal of them.
The Mother's secondary proposal would permit the Father to develop a more meaningful relationship with X, but that would require that the siblings be split up. I do not regard that as a sensible course, for reasons which I will come to. Further, the Mother's secondary proposal does not account for the Father beginning to spend time with the children, given his recent positive drug test.
It is also necessary at this juncture to consider the relationship between the children and their Mother. The evidence suggests she has been the primary carer. They have spent a significant amount of time with her since they moved to Queensland. The orders proposed by the Father and the ICL allow the children to continue to live with the Mother and enjoy that relationship with her while they build a new relationship with their Father. It is of significance that the children will continue to enjoy a stable relationship with their Mother while they undergo that process.
Turning then to the other factors in the Act. Dealing with the views of the children and the nature of the children's relationships with each parent. X expressed the view that she wished to see her Father. This is not a view I would give significant weight to, given her age. I have, however, taken account of what the section 11F writer seems to record as her apparent enthusiasm for seeing her Father. The Father does not enjoy any significant relationship with Y given Y's age. This is something that needs to be given time to develop and develop at an appropriate pace given the age of Y. The relationship with Y will not develop in a manner appropriate for Y's age under the Mother's proposal.
There seems little doubt that the children enjoy a strong relationship with their mother, given that she has been their primary carer and I take that into account. The Father has had limited opportunity to participate in decisions involving the children. Given that the Mother unilaterally removed the children to Queensland, I do not place any significant weight on his lack of involvement in their lives since February this year. It is to be noted that, clearly, the Father was involved before. He attended appointments with X and saw the children regularly every alternative weekend. He is seeing the children on FaceTime notwithstanding the difficulties he deposed to since I made orders for that time to occur, and he has persisted with the Facetime contact despite apparent difficulty.
A significant issue in this case is the likely effect of any change in circumstances on the children. The following matters are of relevance. First, the Mother unilaterally moved to Queensland. By doing so, she caused a significant disruption to the lives of the children including unilaterally removing them from the lives of their Father and their friends. The Mother then subsequently agreed to return to Victoria following the Father's initiation of these proceedings. While at one point she sought to delay her date of return, she accepted that she needed to return to Victoria and she has done so. The children have thus been uprooted twice already in the space of six months. Granting the Mother's proposal would see the children uprooted three times in the space of approximately six months. If at trial, the Court is ultimately of the view that the children should return to Victoria, that would result in four moves by them in the space of around a year or slightly more than that. On any view, that is a lot of disruption for them at an emotional and physical level. The section 11F report writer has noted that both children are vulnerable and that X has been the subject of much change in her short life and needs stability. The report writer notes the importance of consistency of care and stability. Further, the Father and ICL’s proposal has the advantage of not resulting in the children being uprooted for a third time in a short space of time. All of these matters weigh in favour of the Father and the ICL’s proposal.
It is appropriate here to consider the Mother's alternative proposal that the siblings be split and she be permitted to return to Queensland with Y. I do not regard that as being in the children's best interests. The section 11F report writer has recorded that the children are vulnerable and have been subject to a lot of change. To split them in those circumstances may well result in them losing the support of each other. I would be removing the one constant in their lives apart from their Mother and that constant is each other. It would not promote stability which the section 11F reporter writer says they need. I also note that both parents had reservations about this course and I think they were right to hold these reservations.
Turning to the practical difficulty and expense associated with the proposals. An outcome of the orders sought by the Father and the ICL is that the Mother would need to arrange accommodation in Victoria. That is likely to impose a significant financial burden on her in circumstances where she is reliant on Centrelink benefits and where she deposes to being tied to a lease in Queensland because her mother cannot afford lease payments herself. Against that, however, during the hearing the Mother also indicated that she would be prepared to assist with the costs of the children travelling to see their Father if she returned with the children to Queensland. If that happened, it would seem to me that that would also impose a not insignificant cost on the Mother. It seems to me therefore that there are costs that the Mother will need to bear either way. Clearly, if the children continue to live in Victoria, while the Mother will have an initial setup cost and for a period of time may be caught with two lease payments, there will not be any ongoing travel costs between Victoria and Queensland. That is a benefit of the ICL and Father's proposal.
Quite apart from the financial costs, there are practical difficulties that also need to be considered given the current pandemic. We live in an age where State borders seem to be shut without much warning. Border closures have already interfered once with the plans of this family. It is not possible to predict the future course of this pandemic or what border closures may continue to be a feature of life in the future. That uncertainty must be taken into account by the Court when it considers the Mother's proposal to relocate with one or both of the children back to Queensland. It seems to me that in the interim, there remains a real risk that the children would not see their Father as contemplated by the Mother's proposal if they returned to Queensland given the pandemic and its consequential effects on travel. I do not accept the Mother's submissions that this uncertainty will end any time soon.
The evidence strongly suggests that the Mother has capacity to care for the children. There is also evidence before me that the Father has capacity to care for the children, with them spending alternate weekends with him prior to being removed to Queensland. While both parents seem to be able to cater for the physical needs of the children it also seems to be the case that the issues with X and her behaviour have not been addressed as fully as they might have been.
One question that arises in relation to issues of capacity concerns the Mother. The Mother deposed to various reasons which I have recounted above as to why she prefers to live in Queensland. She says her mother lives there, that she has two brothers there and that she recently established a new relationship there. The inference to be drawn is that her capacity to parent may be affected if she is not permitted to return to Queensland immediately. I have considered these matters but ultimately given them little weight. The move to Queensland is a recent one with both the Mother and her mother previously living in Victoria before that. The evidence about her various relationships with her brothers or new partner is scant. It effectively amounts to assertions with little detailed evidence behind it. The evidence about mental health deterioration is unsupported by experts. There is no evidence that she has particular employment prospects in Queensland that would enable her to better provide for the children. There is no evidence about what her relationships in Victoria are and whether she could obtain support from people here. I note the section 11F consultant considered this issue and noted the Mother's desire to return to Queensland, but did not support a move back to Queensland.
When all of these matters are weighed up, I am of the view that the best interests of the children require them to live with their Mother. They also need to start spending regular time with their Father in a limited and safe way, given his drug test results.
There is then the question of whether the Mother be permitted to relocate to Queensland with the children or whether the Mother live in Victoria with the children pending the trial of the matter. The Mother's representative submitted that the authorities in the area promote freedom of movement for parents. I accept that the authorities in certain circumstances acknowledge the importance of parents being able to live their lives reasonably freely. That, however, must always be subject to and considered as part of what is in the children's best interests. While I have taken into account the Mother's desire to move to Queensland and the factors that she says support such a move, ultimately, I am required to look at all the matters required by the Act to determine what is in the children's best interests, and that is the approach I have endeavoured to take in this difficult case. When these matters and the various considerations under section 60CC are considered, in my view, it is in the children's best interests that they and their Mother remain living in Victoria and that orders be made for them to start spending time with their Father.
As I have noted, the ICL submitted a minute of proposed orders that were supported by the Father. Those orders were, in my view, somewhat inconsistent. They provided for the Father to commence overnight time and to progress to alternate weekends without any further drug testing occurring before the progression of time, when as matters presently stand the Father has returned a positive drug test. Despite that, the same set of orders provided that the Father's time was to be suspended upon a further positive drug test. I will not make orders in the form sought by the ICL or the Father.
In my view, given the recent positive drug test, the Father's apparent inability to control his drug use (notwithstanding these proceedings have been on foot for some time now), and his lack of candour which causes me to seriously doubt his version of the family violence incident that occurred on Boxing Day 2020, no overnight time should occur. Overnight time should only be contemplated once the Father has returned a negative drug screen. The appropriate order is that the children spend time with the Father during daytime only and that changeover occur in a public place.
Accordingly, I will make an order that the children see their Father each Saturday from 10am to 4pm, and on Thursdays from 4 pm to 6.30 pm. There is also to be Facetime contact each Tuesday. I will also make orders for the children to see the Father on Boxing Day and for the children's birthdays. I make these orders having regard to all of the evidence before me including not only the Father's positive drug tests and his lack of candour but also the fact that the Mother was aware of the Father's previous drug use but nevertheless permitted the children to be with him and even ventured to the family consultant that X should live with the Father.
During the hearing I raised with the parties the prospect of having this matter listed urgently for trial in December, given the complexity of the matters which confronted me. The Father opposed an early trial date. The Mother was supportive of it. Ultimately, an early trial date cannot be accommodated given my docket. In any event, this matter could not be properly ready for an early trial. The Father has not spent any time with the children for nine months because of the Mother's unilateral move and that absence, along with his drug test results mean there is no opportunity for time to progress for him until at least his next hair follicle test in December. In light of those matters, the orders that I will make are as follows.
The matter will be listed again for mention before Judge Howe on 2 February 2022at 9.30 am.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 19 October 2021
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