Dardelwill and Brent (No 2)

[2010] FamCA 55

FAMILY COURT OF AUSTRALIA

DARDELWILL & BRENT (NO. 2) [2010] FamCA 55

FAMILY LAW – CHILDREN – Resumption of suspended contact – Drug culture problems

Family Law Act 1975 (Cth)

APPLICANT: Ms Dardelwill

RESPONDENT: Mr Brent

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 823 of 2009

DATE DELIVERED: 3 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 21 JANUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR POTTER

COUNSEL FOR THE RESPONDENT: MS PANDELI

SOLICITOR FOR THE RESPONDENT: MARIA BARBAYANNIS & CO

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MCCARTHY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MCCARTHY HOEY

Orders

1. That until further order, the children W born … September 1999, J born … July 2001 and Y born … September 2003 spend time with their mother on each alternate Saturday from 10.00am until 4.00pm.

2. That for the purposes of paragraph (1) of these orders, the father deliver the children to the mother at the Hungry Jack’s Restaurant at W.

3. That all interim applications be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 823  of 2009

MS DARDELWILL

Applicant

And

MR BRENT

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Ms Dardelwill has applied to remove the suspension of her time with ten year old W, eight year old J and six year old Y.  That time was suspended under orders made on 4 November 2009.

2. The reasons for suspending the mother’s time are set out in the judgment given that day.

3. Subsequent to 4 November 2009, there has been a series of hearings but unfortunately, parties or lawyers were absent or the information that would have assisted me was unavailable.

4. In November, the mother had refused to see the children at a contact centre and there was no other suggestion of how any form of supervised time could be conducted.  The relationship between the mother and the father is appalling and extended family members seem to have mutual disrespect for one another.

5. I directed the Registrar to issue subpoenae to various authorities to try and get to the bottom of just what was happening having regard to the mother’s request to resume the orders that were extant prior to 4 November.  The father’s position was that the mother’s application should simply be dismissed.  His supporting affidavit was replete with expressions of concern about the mother’s drug use and “apparent involvement in the supply of amphetamines”.  He said he was unaware of the outcome of the investigation into the assault on Y by the mother.  He was unaware of the outcome of the mother’s criminal proceedings relating to the drug usage.  His position was that any time had to be supervised but he was happy for the mother to telephone the children on a weekly basis.

6. The concern I expressed at the time was that a comprehensive investigation of the dispute could not really start until about April and such a gap denied the children having a serious relationship with their mother and their siblings.  The mother has a number of children from other relationships who live with her.

7. Of the witnesses who gave evidence in response to the Court’s subpoena, Ms U was the intake worker of the Department of Human Services who was responsible for eliciting information and co-ordinating the response of the Department concerning the allegation about the mother assaulting Y.  She referred the child to Dr G. Dr G told the Department that she could neither confirm nor deny the consistency between the assertion of Y about how he was struck and his injury.  She said that Dr G said the bruising was “non-specific” but in part that was a difficulty caused by the fact that the examination of the bruising was more than 18 hours after the event.  Dr G did say that the bruising was unusual for accidental injury.

8. The Department adopted the view that the father was making protective decisions one of which was the fact that he had ceased permitting the mother to have time with the children.  Some of the information upon which the Department was working came from their file but they did not interview the mother herself.

9. When asked about recent views, the Department’s position was that there were no further reports and there was currently no open role for them.

10. Detective L from Police CIU the Court’s second witness under subpoena, was contacted by other police investigators concerning the assault.  He was requested to interview the mother.  He went to the trouble of obtaining a search warrant to seek out the stick with which Y was said to have been hit but a diligent search of the home did not find it.  He said that in the course of his search, he found a “small quantity” of “speed” and located a loaded syringe which was ready to be used by the mother.  He said there was not much else to suggest trafficking although there were the usual scales and “deal” bags.  He thought the mother’s explanation about the use of the bags for storing jewellery sold at markets was implausible but there was not enough information to charge her with any more serious offences than possessing and using the drug.

11. The mother was charged with using and possession of a drug of addiction.  She was put before the Magistrates Court where she pleaded guilty and appears to have been fined.  The fine was significant indicating that the Magistrate viewed the matter seriously.  This Court endorses the seriousness in the same way.  There do not appear to be any other criminal charges of a similar nature pending and the mother’s prior criminal history as known to the Court would appear to relate to driving offences.

12. Mr L said that there was no history of extensive use of drugs although there was certainly an anonymous report some six months before that the mother “may have been” dealing in drugs.  The police did not take a lot of notice of that.  He said that when he went to the house, he found the mother’s bedroom had locks on it.  The mother was adamant that the area was out of bounds for children.

13. Mc L had little recollection of the detail in the record of interview.  In a subsequent letter sent to the Independent Children’s Lawyer at my request he said he had listened to the interview and the answers of the mother to his questions were as follows:

    Q.       “You use a lot of drugs, don’t you?”
    A.       “Lately.”

    Q.       “How often would you use speed?”

    A.“…well prior to a week and a half ago, before I lost me job I was doing every day…”

    Q.“So every day?”

    A.“Once or twice a day.”

14. The nature of the admission by the mother, if that is what it was, may be open to interpretation.  For example, there may be a genuine confession or on the other hand, there may be a cynical response to a loaded question.  I do not have a sense in this interim hearing as to what to make of the statement that the mother made.  It will become an important aspect in the final hearing of this case.

15. He acknowledged what could only be described as a commonsense concern about children being in a house where drug usage was occurring.  He had little to say about the mother in terms of her reputation within the local community.  Albeit he had not been in the area for long, he did not express the view that the mother was a significant participant in the drug abuse culture.  If she has been, she has gone without being noticed but importantly, she will be under scrutiny from now on.  In all other respects, there was nothing in the mother’s home where a number of people lived which would have caused Mr L concern.

16. Leading Senior Constable S from Police SOCAU was the final witness.  She interviewed Y.  She passed the investigation on to Mr L for interview.  She has prepared a prosecution brief for her Senior Sergeant and is awaiting the outcome of that. 

17. Ms S similarly expressed concern about drug usage and children.  In her second conversation with the mother, Ms S found her reasonable to deal with.  I inferred that in the first conversation, she was not quite so cooperative. 

18. The mother wanted to call another police officer from the Gippsland area but because of his unavailability at that time and it being the end of a very long day, the witness could not be called.  Having regard to what I am about to order, the mother has not been prejudiced.

19. Counsel for the mother pointed to the mother having provided three “clean screens” and there were two more awaiting results.  She said she had done a parenting course.  Interestingly, counsel said that the mother no longer used drugs but at no stage has the mother given any plausible explanation as to why things occurred as they did nor has she expressed an understanding of the commonsense concerns as stated by the witnesses to whom I have referred.

20. The solicitor for the father simply pointed to the absence of evidence from the mother which might alleviate the obvious risk of exposure of the children to drugs.

21. The Independent Children’s Lawyer said that he had spoken to the children and that they wanted to see their mother.  He said that they felt safe with their mother.  One would presumably expect that from young children oblivious to the dangers of the drug culture. 

22. The Independent Children’s Lawyer acknowledged the drug tests results were as the mother claimed however they were clearly not random in the true sense of the word.  I have taken into account as a negative factor against the mother, judicial notice of the fact that amphetamines is hard to test because of its rapid departure from the body from a testing point of view.  There are certainly other indicia but nothing suggests that the mother is anything other than clean of drugs at this point of time.

23. It was the Independent Children’s Lawyer’s position that contact between the mother and children should resume.

24. I am unaware of the future of the police prosecution concerning the assault on Y by the mother.  I am not sure what is happening but if there is to be a prosecution, the Court has to grapple with a potential child witness being in the care of his accused.  I take into account in deciding the outcome of this case the importance of the protection of the child.  I also balance that against the need for the child to have an ongoing relationship with his mother.  I do not see the child Y as being successfully manipulated by his mother.  If she attempted to do so, it would be transparent.  I take into account also the fact that the police have waited some months and are pondering over the issue.  I cannot help but comment that that was odd having regard to the fact that the drug matters were quickly expedited despite the fact that that was not the original reason for the police intervention in the life of the mother.

25. The sensible solution on an interim basis is to consider the two main objectives in s 60CC(2).  The first is to ensure that the children benefit from having a meaningful relationship with their mother.  That can be arranged in this case whilst ensuring the second of the considerations namely the protection of the children from abuse.  There is a significant risk as I pointed out in November to the children being in the care of their mother whilst she is either affected by drugs or in a culture which uses them.  The absence therefore of that environment is important to ensure that the children are protected and enjoy the benefits of having an ongoing relationship with their mother.

26. A suggestion made by the father as a fallback position was that the children see their mother from the Hungry Jack’s Restaurant at W.  It is a business premise approximately 500 metres from the W railway station. W is a community which has a shopping centre.  It is convenient for the father to get there.  Whilst the mother may have access only to W through public transport, the train is nearby.  The mother on a previous occasion has indicated to me that if it involved her children, she would get to court at any hour I dictated.  She pointed out that she had in fact left home at 4.00 o’clock in the morning.  Such is the commitment of the mother to try and have a relationship with her children that I do not think it will inconvenience her for a few months on a fortnightly basis to see the children at W.

27. I take into account however that spending time away from a home creates a long day for young children and an expensive one for an adult.  This however will focus the mother’s attention on her resourcefulness, allow the children some time to play as well as become acquainted again with their mother.  Importantly, the W area will enable the children to be away from an area which appears to me to be of some concern in circumstances where the mother has never explained why all of the drug issue arose.

28. I do not propose to canvass all of the issues under s 60CC(3) again because I dealt with those in the hearing in 2008.  I there set out all of the various attributes of the mother and the father in respect of the relationship between them and the children.  I refer back to those and say that apart from the issue that gave rise to the problem here, I have nothing further to add.

29. It seems in the circumstances that the best interests of the children are served by giving the mother an opportunity to redevelop the relationship knowing that the whole issue will be scrutinised in some detail later in 2010.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 February 2010