Eastick & Burrows

[2021] FamCA 458

FAMILY COURT OF AUSTRALIA

Eastick & Burrows [2021] FamCA 458

File number(s):

MLC 11087 of 2014

Judgment of:

BENNETT J

Date of judgment:

12 July 2021

Catchwords:

FAMILY LAW – INTERIM PARENTING – where children aged eleven and ten years had resided in primary care of the mother from separation until she was found to be addicted to illicit drugs and to abuse alcohol – where primary residence for children was changed to father and the mother had time with children supervised by the maternal grandmother – where private family report and psychiatric assessment were ordered in anticipation of final hearing.

FAMILY LAW – INTERIM PARENTING – where court listed matter for urgent hearing of its own volition following publication of private family report in which report writer opined that the children needed to be protected from the mother – where the private family report writer and psychiatrist who assessed both parents each recommended a moratorium of six months on direct contact between children and mother – where mother’s time and communication with children was suspended subject to mother having an opportunity to cross examine single experts on interim suspension of time.

FAMILY LAW – INTERIM PARENTING – where time and communication between mother and children suspended on an interim basis – where sole parental responsibility granted to father on an interim basis.

FAMILY LAW – INJUNCTIONS – where mother required to undergo tests for detection of use by her of illicit drugs and alcohol abuse notwithstanding that mother is not having any direct contact with the children nor exercising parental responsibility – where injunction for the welfare of child pursuant to s68B considered.

FAMILY LAW – PRACTICE AND PROCEDURE – where court omitted to consider application of father for injunction requiring mother to divulge information about her drug tests and treatment – where parties can have that aspect of matter relisted for determination.

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Number of paragraphs:

146

Date of hearing:

29 April and 28 May 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Dickson QC

Solicitor for the Applicant:

Kenna Teasdale Lawyers

Counsel for the Respondent:

Mr Gates

Solicitor for the Respondent:

Ryan Carlisle Thomas

Counsel for the Independent Children's Lawyer:

Mr Marchetti

Solicitor for the Independent Children's Lawyer:

Altavilla Family Law

ORDERS

MLC 11087 of 2014

BETWEEN:

MR EASTICK

Applicant

AND:

MS BURROWS

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	31 MAY 2021

ORDER 1- FRIDAY 28 MAY 2021

IT IS ORDERED THAT:

1.The wife forthwith attend upon a pathologist for testing for the detection of use by her of illicit substances, any medications and/or alcohol. Such test to be a supervised urine test taken in circumstances where an unbroken chain of custody in the specimens taken can be proven.

2.The wife do and does hereby authorise the provision of results of that supervised urine test to be provided directly to her solicitor Ryan Carlisle Thomas, … reference Ms B, and to the Independent Children’s Lawyer, Ms Altavilla …, contemporaneously.

3.For the purpose of compliance by the wife with paragraph 1 of this Order, she attend at C Medical, D Street, Suburb F, …, before 5pm this day (Perth time) with a copy of this Order.

4.The Independent Children’s Lawyer be responsible for provision of a copy of this Order on the proper officer of C Medical by electronic means.

ORDER 2- MONDAY 31 MAY 2021

IT IS ORDERED:

1.Until further order, the Father have sole parental responsibility for the children, X born … 2010 and Y born … 2011 (“the children”) and that before making any long-term decisions in relation to the children’s care, welfare and development (except in the case of an emergency):

(a)he advise the Mother via OurFamilyWizard of his proposal as early as practicable;

(b)the Mother within 48 hours of receiving the Father’s proposal has the opportunity to make comment via OurFamilyWizard; and

(c)after receiving the Mother’s comments, the Father make a decision and advise the Mother via OurFamilyWizard of that decision.

2.Until further order, the children live with the father.

3.That within seven days of the Orders, the Mother provide the children’s passports to the Father’s lawyers and the passports be held by the solicitors for the father pending further order of the court.

4.Until further order, the mother’s face to face and electronic time with the children be suspended and the mother be at liberty to communicate with the children by cards, gifts and letters via the children’s therapist Ms G (or her successor upon her departure from the practice) with such frequency as recommended by her/him (should the therapist choose to make any recommendations as to the frequency and content of such communications).

5.The Applicant and Respondent be equally liable to meet Ms K’s costs of her attendance today to give evidence.

6.The Independent Children’s Lawyer forward to Ms G (and/or her successor) copies of the reports of Dr H and Ms K, the transcript of his/her evidence and this Order.

7.All extant interim applications be otherwise dismissed.

8.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

9.That this matter be listed for mention on 23 September 2021 at 9.00 am for the purpose of checking on the readiness of the matter for trial NOTING THAT a tentative final hearing date has been reserved for 21 March 2022.

10.That my reasons for decision this day be published subsequently.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eastick & Burrows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

REASONS FOR JUDGMENT

BENNETT J:

INTRODUCTION	[1]
APPLICATIONS	[3]
INDEPENDENT CHILDREN’S LAWYER	[5]
THE FAMILY	[8]
HEARINGS	[14]
RELEVANT HISTORY	[24]
H	[52]
EVIDENCE OF PRIVATE FAMILY REPORT WRITER MS K	[56]
DISCUSSION	[66]
Mother’s drug use	[70]
Children’s views	[78]
The children’s	[86]
Parental capacity and responsibilities of parenthood	[92]
Mother’s rehabilitation	[96]
Impact of changes on the children	[101]
Family violence orders	[106]
Drug testing and treatment related responsibilities	[110]
PARENTING ARRANGEMENTS THAT ARE IN THE CHILDREN’S BEST INTERESTS	[117]
PARENTAL RESPONSIBILITY	[125]
CONCLUSION	[143]

INTRODUCTION

1. This matter concerns interim parenting arrangements for the boys X, who is eleven years old, and Y, who is ten years old. Since May 2020 the boys have been living with the father and their step mother, Ms L, and their time with the mother was to be supervised by the maternal grandmother. In late February 2021 the father unilaterally stopped time between the mother and the boys. On 29 April 2021 I ordered that the mother’s time and communication with the boys be suspended. On 28 May 202, I heard the competing applications for what time and communication the mother should have with the children going forward and the father’s application for interim sole parental responsibility which was opposed by the mother. Late in the day on 28 May 2021, I indicated what orders I would make and pronounce them on 31 May 2021. I said that I would deliver my reasons subsequently. These are those reasons.

2. This decision, to suspend any time or communication between the mother and the children and to grant sole parental responsibility to the father, will seem to the mother to be a harsh interim decision. Numerous extracts from the evidence of the experts, Dr H and Ms K appear below. I have chosen to use the experts’ words rather than to summarise their opinions because it is important for the children that the mother can have easy reference to precisely what the experts said. Any subsequent application for a reinstatement of time with the children or other parenting arrangements will be assessed, at least in part, against the experts’ opinions expressed in the two hearings including that the mother should undergo a residential drug rehabilitation program.

   APPLICATIONS

3. By her Application in a Case filed 26 May 2021 the mother sought that the interim orders made 4 June 2020 be reinstated. Relevantly, the Order made 4 June 2020 providing that the children live with the father and spend time with the mother each Thursday afternoon after school, each alternate Sunday from 12 noon to 6:00 p.m. under the supervision of their maternal grandmother. However, in court on 28 May 2021 the mother’s application was revised to seek face to face time with X and Y supervised by paid persons from N Services or P Services.

4. In the father’s summary of issues filed on 20 May 2021 he sought interim sole parental responsibility, that the mother’s time with the children remain suspended for six months, the mother return the boys’ passports to him and enlargement of an order requiring the mother to keep the father and the Independent Children’s Lawyer informed of treatment received by the mother by:

   (a) advising him when she attends the emergency department of any hospital, and providing him with a copy of the hospital admission statement and discharge summary, within 24 hours of each attendance;

   (b) advising him when she is admitted as an inpatient at any hospital, and providing him with a hospital admission statement and discharge summary, within 24 hours of each admission; and

   (c) keeping him advised in relation to any medication she is prescribed and the prescribed dose of such medication; and

   (d) providing them with a copy of all attendance and progress reports from Alcoholics Anonymous and/or Narcotics Anonymous.

   INDEPENDENT CHILDREN’S LAWYER

5. Pursuant to an order made on 13 April 2021, Ms Altavilla, solicitor, was appointed Independent Children’s Lawyer for the children within the meaning of Division 10 of Part VII of the Family Law Act 1975. Her role is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what she believes to be the best interests of the children.[1] She is not a legal representative retained by the children and she is not bound by any instructions from the children.[2] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The duty to be impartial does not prevent the Independent Children’s Lawyer from supporting on parent’s position over the others parent’s position if she considers that the preferred position is in the children’s best interest. The Independent Children’s Lawyer is under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

6. The case outline of the Independent Children’s Lawyer filed for the hearing on 28 May 2021, stated that, subject to the testing of the evidence and in the absence of greater confidence as to Ms Burrows’ capacity to address her drug and alcohol issues, the Independent Children’s Lawyer supported and endorsed the relief sought by the father.[5]

   [5] Summary of Issues on behalf of the Independent Children’s Lawyer filed 24 May 2021 [page 6 of 12]

7. Ms Altavilla and counsel retained by her have represented the boys’ interest with apparent objectivity and skill and have been of considerable assistance to the court in these interim proceedings.

   THE FAMILY

8. The father is nearly 57 years old, self employed as a Managing Director of a consulting business which he established in 1999. He is married to Ms L who is 45 years old. They have been in a relationship for three or four years. The father also has two children, Ms R (27 years old) and Mr S (21 years old), from a previous relationship of ten years duration.

9. The mother is 42 years old, an Australian and United Kingdom citizen and gives her occupation as a business owner. She deposes[6] to suffering from a medical condition for which she has had major surgery, Attention Deficit Disorder, and viral cardiomyopathy. At paragraphs 7 and 8 of the affidavit filed by her on 1 June 2020, the mother describes fourteen medications she took in the previous six months being the four medications regularly prescribed for her and the ten other medications prescribed in those previous six months.

   [6] Affidavit of mother filed 1 June 2020

10. X was born in 2010, is eleven years old. X is in year five at T School. He suffers from a medical condition for which he has received treatment. A description of X is extracted at paragraph [53] of these reasons.

11. Y was born in 2011, is nine years old and is in year four at T School. A description of Y by Ms K is extracted at paragraph [54] of these reasons.

12. Following separation the children were in the primary care of the mother until 6 May 2020. Since 6 May 2020 the children have resided in the care of the father and have had only restricted, supervised time with the mother.

13. The boys have counselling with Ms G from AD Psychology Clinic. Ms G is not available on an ongoing basis and will be replaced by another counsellor in the near future. I asked what the counselling was commenced to address as is not uncommon that in cases of high parental conflict and impaired parenting capacity, such as here, that children are pathologised. I was informed by counsel for the Independent Children’s Lawyer that, from the Independent Children’s Lawyer’s perspective, the counselling for the children is principally to address issues of anxiety, specifically fear and worry.

    HEARINGS

14. There were two hearing days.

15. On 29 April 2021, Mr Dickson QC appeared for the father. Mr Gates, of Counsel, appeared for the mother. Mr Marchetti, of Counsel, appeared for the Independent Children’s Lawyer. The hearing was listed urgently following the publication of the family report by a private report writer, Ms K, dated 24 April 2021.[7] An earlier in time report of psychiatrist Dr H, detailing his assessment of both parents, is dated 15 February 2021 and was received by the court on 15 March 2021. The two reports are to be read in conjunction.

    [7] Affidavit of Ms K filed 24 April 2021

16. I will discuss Ms K’s report extensively later in these reasons but the matter appeared to require urgent attention when she expressed the view that:

    “X and Y need to be afforded some protection from their mother.”[8]

    [8] Report of Ms K dated 24 April 2021 [40]

17. In Dr H’s report, which I will discuss more fully below, he concludes:

    Mr Eastick does not represent a risk to the children from a psychiatric perspective whereas Ms Burrows impresses as in the very early stages of drug and alcohol remediation, an endeavour which is very much a work in progress. Earlier failed treatment endeavours were explained away on medical grounds and I was not convinced that they were the more significant reasons for her not completing those drug and alcohol assessments and treatments, and as recently as the time of the originally arranged assessment with myself which she did not attend, Ms Burrows was ‘hospitalised’ for similar reasons.

    As such I was left with the distinct impression that Ms Burrows has been inclined to manipulate and massage the truth and whilst apparently remorseful and determined to rehabilitate herself, nonetheless she remains at significant risk of relapse, and with that a deterioration in her psychiatric condition. Further light will be thrown on the relationship between the children and their parents, contact and residence implications by Ms K’s forthcoming Family Report.

18. Dr H gave some oral evidence on 29 April 2021. The evidence was brief but confirmed what had earlier been relayed by counsel for the Independent Children’s Lawyer, that Dr H is particularly concerned about the mother’s current capacity and level of insight. Dr H identifies a continuing risk in terms of the mother spending face to face time with the children at present and sees value in some significant work being undertaken by her to address her addictions. Dr H recommended a moratorium of six months during which the mother spends no time with the children and she can work on her sobriety and abstinence from illicit drugs and abuse of alcohol.

19. In oral evidence Ms K agreed with the moratorium of six months with the qualification that in her opinion the longer the time between seeing their mother the more likely it is that, when the boys are reconnected with the mother, they are going to engage in a range of resisting behaviours. From Ms K’s clinical perspective, the longer the moratorium the longer the reunification process may take. Ms K also clarified that, in her view, supervision of the mother’s time by the maternal grandmother does not reduce the boys feelings of fear and worry about the mother. Ms K’s recommendation was that “[at] this stage, any work reconnecting the children with their mother ought to be therapeutically and supported by skilled practitioners with experience in this field” such as Ms V or Ms W through either of their therapeutically supported contact programs.

20. On Friday 29 April 2021 I suspended face to face time between the boys and the mother until 28 May 2021. I accepted the submission that there was no scope for electronic communication between the boys and the mother. 28 May 2021 was appointed for a defended hearing as to the mother’s time with X and Y on an interim basis. By consent, I vacated the final hearing which was otherwise due to commence before me on 21 June 2021, it being agreed by all parties that the matter was not ready to proceed to a final hearing.

21. On 28 May 2021, Mr Dickson QC appeared on behalf of the Applicant Father, Mr Gates of Counsel appeared on behalf of the Respondent Mother and Mr Marchetti of Counsel appeared on behalf of the Independent Children’s Lawyer. I heard cross examination of the family report writer, Ms K, and submissions. Neither parent sought that the other parent be cross examined. As was her won’t, the mother addressed the court personally and at length and I will discuss some of that content later in these reasons. I pronounced orders requiring the mother to attend for immediate drug and alcohol testing. Given that it was already late in the day, I informed the parties and their practitioners that the mother’s time with X and Y would remain suspended and what amendments should be made to the father’s minute of proposed orders to give expression to my decision. The hearing concluded at 5:03pm. I pronounced orders on 31 May 2021.

1. Both hearings were conducted on the courts’ MSTeams platform. The parents participated and could be seen on screen.

2. For case management purposes, this matter is not currently listed for final hearing but a tentative final hearing date has been reserved before me on 21 March 2022, estimated to take 5 days. It is listed for review on 23 September 2021 at 9.00am.

   RELEVANT HISTORY

3. It is necessary to put the current applications into context by reference to the history of the matter. The below facts are not exhaustive, they are taken from the material relied upon by the parties and there is a lot of material on the court file to which the parties did not refer.

4. The parents commenced cohabitation in May 2006.[9] They were married in 2007. X was born prematurely and Y was born even more prematurely.

   [9] In the “Father’s Brief Summary of Issues for the Interim Hearings Listed on 28 May 2021”, it is stated in paragraph A. that cohabitation commenced in May 2006 but in paragraph B. that the parties commenced cohabitation in March 2003. In her affidavit affirmed on 8 April 2021 the wife deposes that the parties commenced cohabitation in 2003.

5. The father states that the parents separated on 20 November 2014 whereas the wife deposes to separation on 10 October 2014. In any event, X was four years old and Y was three years old when their parents separated and the boys remained in the mother’s primary care.

6. Proceedings began in this Court when the mother filed her application for final orders on 8 December 2014 and the husband filed his response on 14 January 2015. On 13 March 2015 interim parenting orders were made by consent for the children to live primarily with the mother and live with the father for five nights a fortnight, being Thursday overnight in one week and from Thursday to Monday in the other week and at such further and other times as may be agreed between the parties. The boys were then aged five years and three and a half years.

7. On 17 December 2015 final parenting orders (Thornton J) were made by consent of the parties which provided for the parents to have equal shared parental responsibility, that the children live with the mother and continue to spend time with the father for five nights per fortnight during school terms and for one half of school holidays. X was five years old and Y was four years old.

8. The father states that the parents divorced on a date in April 2016 whereas the mother deposes to their divorce occurring on the following day.

9. On 11 April 2017 the father filed an Initiating Application seeking urgent orders that the children remain enrolled in T School. He alleged that the mother had unilaterally enrolled the children in Z School and then kept them out of school for two weeks contrary to her obligations under the order for equal shared parental responsibility. On 29 May 2017 Tree J. requested the appointment of an Independent Children’s Lawyer for the children. On 9 June 2017 Ms Hams, solicitor, was appointed as Independent Children’s Lawyer. On 24 October 2017 orders were made, by consent, (Johns J) that the children complete their primary school education at T School, the Order made 17 December 2015 remain in full force and effect, and the parents attend Ms V for reportable therapeutic counselling. Ms Hams’ appointment as Independent Children’s Lawyer ceased when orders were made on 24 October 2017.

10. On 18 December 2019 the father filed an Initiating Application seeking urgent orders that the mother hand over the boys’ passports and that he be permitted to travel overseas with them. He alleged that the mother had reneged on her agreement that the boys could travel and would not make the passports available. On 19 December 2019 interim orders were made, by consent, to facilitate the boys travelling overseas with the father.

11. On 31 January 2020 the father filed a Further Amended Initiating Application in which he sought interim orders that he have sole parental responsibility for X and Y that the children live with him and spend time with the mother. He also sought restraints on the mother from consuming alcohol 24 hours prior to her time with the children. At paragraph 23 of the father’s affidavit filed 31 January 2020 the father deposed to the children having moved residences eight times in four years and the mother having had ten partners all of whom the children have met. The father made allegations about drug use and alcohol abuse by the mother. At paragraph 24 of his affidavit the father describes what he was told at a meeting with the mother’s recent partner, Mr J:

    He told us he is worried about the children when they are in Ms Burrows’ care because she uses cocaine and drinks alcohol almost every day. Mr J said that Ms Burrows drives with the children in the car after she has been using cocaine and drinking alcohol. Mr J also said that Ms Burrows told him that she attempted suicide using drugs in 2018. Mr J also gave details on Ms Burrows’ medical condition and the amount of time she spends in hospitals, including the insertion of a pacemaker.

12. Mr J deposed on affidavit filed by the father on 31 January 2020 to the following behaviour and to his concern for the children in the mother’s care:

    “I saw her drink alcohol and use cocaine almost every day” (para 9)

    “Ms Burrows told me she could not function without cocaine” (para 11)

    “Towards the end of my relationship with Ms Burrows I saw her smoke marijuana most evenings even when the children were in her care. (par 15.)

    “I tried to limit the amount of driving Ms Burrows did with the children in the car…” (para 19)

13. The boys allegedly told their stepmother, Ms L, that one of their mother’s partners, Mr M, would visit their mother’s home and sleep in their beds. The father made further enquiries of the boys who confirmed Mr M had cuddled them but there had been no genital contact or penetration.[10] This was the first occasion on which the father made allegations that the mother was using illicit drugs and abusing alcohol.

    [10] Dr H Psychiatric Assessment Report dated 15 February 2021 at page 2.

14. The mother’s Response to the Final Orders was filed on 3 March 2020 and sought a continuation of the final orders made 17 December 2015, save that the five nights each fortnight the boys spend with the father in one block from each alternate Friday to Wednesday and that the father return the boys’ passports to the mother. On 5 March 2020 interim orders were made, by consent, providing inter alia, that the parents to obtain a report from Ms V and:

    2.        The mother forthwith advise the solicitors for the father of the names of:

    (a)       her general medical practitioner;

    (b)       cardiac specialist and/or spinal specialist;

    (c)       psychiatrist or psychologist;

    (d)       hospitals or clinics,

    she has attended in the last two year period to date.

    3.The mother be and is hereby restrained from consuming any illicit drugs and/or consuming alcohol to excess.

15. The children, then aged ten and eight years, remained living in the mother’s primary care and spending two out of each 14 nights with the father and half the school holidays.

16. On 9 April 2020 the father filed an Application in a Case seeking urgent provision of information about the mother’s medical practitioners, psychiatrist, specialists, hospital admissions, treatment in emergency, as an outpatient or inpatient and that the mother take extensive drug tests the results for which to be obtainable by his lawyers direct from the pathologist. On 5 May 2020 the father filed an Amended Application in a Case seeking an immediate discharge of the final orders and that the children reside with him, the mother’s time with the children be reserved and within 24 hours the mother inform the father of identifying details of any other member of her household and “sleeping arrangements in the mother’s home”. The father relied on the evidence of a private investigator, Mr AA, retained by the father and who swore an affidavit on 7 May 2020.

17. On 28 April 2020 the Department of Health and Human Services (as it was then known) provided a response to a s.67Z notice of child abuse, family violence or risk of family violence which had been filed by the father. It gave it a summary of child protection history, stating that:

    ·In January 2015 in relation to exposure to family violence perpetrated by the children’s older half sibling, no concerns were raised to the children and no further action was taken.

    ·In December 2019 a report was received due to concerns the children had been exposed to family violence over a period of four months by the mother’s ex-partner. It was assessed that the mother was linked in with supports and the children were assessed as being safe from harm, with no further action taken.

    ·On 22 April 2020 the Department received a report in relation to concerns that the children are at risk in the care of the mother due to risk of emotional harm. It was further reported that the mother used illicit substances and alcohol when the children were in her care and that she was driving with the children whilst under the influence of those substances. The Department said that it had no information in relation to the allegations.

18. The Department wrote:

    [Given] the matter is before the Federal Circuit Court measures can be taken to assess whether Ms L should be subjected to drug screening to ensure that she is not under the influence of illicit substances whilst the children are in her care. Child protection would have concerns the children were being exposed to illicit substance abuse and should there be any information to suggest that this is occurring, the reports can be made at that time. It is important that the children’s needs and wishes are addressed throughout the family court process. It has been assessed that the matter is best addressed by the Federal Circuit Court. The matter remained a child protection intake and assessment phase and closed on or around 28 April 2020.

19. On 13 May 2020 interim orders were made, by consent, which provided, inter alia, that the proceedings be adjourned to 4 June 2020 for determination, the final parenting orders be suspended until further order, that the children live with the father and spend time with the mother each Sunday from 2 p.m. to 6 p.m. under the supervision of the maternal grandmother and for the mother to undergo supervised hair follicle testing for drug use and carbohydrate deficient transferrin testing for alcohol abuse. The bots have resided with the father since May 2020.

20. On 27 May 2020 the mother’s drug test results were published by DD Pathology. The father deposes to the test results showing “a high amount” of Cocaine, Benzoylecgonine, Coca ethylene, Nora Caine and MDMA (ecstacy) as well as excessive alcohol consumption.[11] I have seen the test results on the court file but am not aware of any expert analysis that describes the mother’s readings as “high”.

    [11] Father’s affidavit filed 2 June 2020 [Annexure “E1”]

21. On 1 June 2020 the mother filed a Response to an Application in a Case dated 1 June 2020 and an affidavit sworn/affirmed by her on 1 June 2020. The mother denied using illicit drugs or abusing alcohol. An annexure to the mother’s affidavit was a letter from her cardiologist, Dr BB, dated 7 May 2020 stating, inter alia, “It would be totally inappropriate for her to be taking recreational substances such as cocaine or cannabis as this could potentially cause more cardiac damage. Ms Burrows(sic) told me that she had not used recreational drugs.” The wife sought orders that the father’s application for a change of residence “be dismissed on the basis of the principle in Rice & Asplund”, that the children be returned to live with her forthwith and for permission to use the affidavit of the father’s private investigator in crimes family violence proceedings for an intervention order in the state courts. The mother deposed that:

    [15] In January 2020, following Mr Eastick spending time the children over the Christmas period, Mr Eastick made allegations that I was using drugs and drinking alcohol to excess. I denied these allegations and questioned who had told him such lies. Mr Eastick refused to disclose his source. The boys were returned into my care and Mr Eastick continued to spend time 5 nights a fortnight.

    …

    [27]On 14 May 2020, I attended upon DD Pathology in Suburb CC and undertook Hair Follicle testing.

    [28]On or about 27 May 2020, I received the test results. As I had expected, the results recorded positive readings. I believe the results were positive as a result of prescribed medication I am required to take die to my significant ill health. I have sought a report from a toxicologist to explain the correlation between the hair follicle result and my prescribed medication. At the time of filing this affidavit I have yet to be provided with a Copy of the report.

    [29] I am very unwell, and I take prescribed medication on a daily basis. This medication is proscribed by my treating physicians. My cardiologist Dr BB has provided a letter to me outlining my medical conditions and the medications I take with reference to the hair follicle toxicology report. Annexed hereto and marked with the letters “B-4” is a true copy of that letter dated 1 June 2020. I have also sought an expert opinion from a toxicologist.

    [30]I do not take illicit substances. I do take a number of prescribed medications that I believe may have produced the positive result. I do drink alcohol, but only on a social basis.

    …

    [31(a)]As to paragraph 3(a) I say that I have provided a full list of medications and treatment for my cardiac condition and a letter from my cardiologist stating that a hair follicle drug test is likely to result in a false positive due to the medications that I have been prescribed.

    …

    [37]In early January 2020 Mr Eastick has alleged that he received a message from an individual claiming that I take cocaine and drink excessively. These allegations are denied.

22. On 2 June 2020 the father filed a further Amended Application in a Case seeking, inter alia, that the children reside with him and spend time with the mother from 3:30 p.m. to 7:30 p.m. each Tuesday under the supervision of the maternal grandmother. He also sought an injunction preventing Mr EE (the mother’s partner) and/or Mr M (the mother’s friend) being present during the mother’s contact time with the children.

23. On 2 June 2020 the mother filed an application for an intervention order against the father. I was not taken to a copy of the mother’s application.

24. On 4 June 2020 Senior Registrar Field made orders, by consent, that the mother have supervised time with the children from the conclusion of school (or 3:30pm if non-school day) to 7pm each Thursday, and each alternate Sunday from 12 noon to 6pm commencing 14 June 2020. The supervised time be suspended for up to one week each term holiday and three weeks of the Christmas holiday, or in the event the father gives two weeks’ notice that he intends to go on holidays in which case make up time will be available to the mother. It was also ordered that the father facilitate communication between the children and the mother, that the mother be restrained from driving the children, and that the mother keep the father advised of her medical treatment.

25. On 17 July 2020 the mother filed a contravention application alleging that the father had, without reasonable excuse, failed to make the children available for time with her on Thursday, 9 July 2020 and on Sunday 12 July, 2020. In her affidavit filed on 16 July 2020 the mother deposed to the father obstructing her time with the children during the Melbourne lockdown for the COVID-19 pandemic. She deposed:

    23. Since the court hearing on 4 June 2020, I have reflected on my behaviour and I now realise I have an addiction to illicit substances and alcohol that I require assistance in dealing with. I was assessed via phone that day to be an inpatient of FF Health Centre to work on my issue and to understand better the decisions I have made and the path that those decisions have brought me to today.

    24. I was admitted into FF Health Centre on 11 June 2020 for the start of a detox programme, which lasted 2 weeks. I was then admitted into GG Centre for in depth work and to educate myself.

    25. I have undertaken various programs inducing one on one intense therapy, group therapy, art therapy, educational classes and daily AA & NA meetings. The team being Ms HH Dr JJ, Ms KK, Mr LL, Ms MM, Mr NN.

    26. I have come to realise that my addiction is actually a disease and there are various circumstances that trigger this condition including stress, depression and anxiety. I have now become a fellow of Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) and have a sponsor (mentor) Mr OO who I speak to 3-4 times a week. I have also engaged an addiction specialist that deal with Addiction & Trauma (Ms PP). I am attending meeting daily and also sometimes twice daily to achieve the goals of 90 meetings in 90 days which includes the 12 step program. The courses that I have undertaken and the therapy that I have received has assisted me to acknowledge my condition, recognise my triggers and take steps to avoid relapsing. I am also undertaking supervised weekly drug screen test to ensure that I am clean and healthy.

    27. Due to a change in policy at the rehabilitation centre as a result of the new Covid-19 restrictions imposed in Victoria and given that I had experienced flu-like symptoms and chest pains I was released early to GG Centre on Sunday 5 July 2020.

    28.I have been referred to QQ Hospital to which I am on the waiting list to continue my treatment via a further 14 day intense therapy program and then a day patient programme following on from that. My current admission date is 18^th August 2020 although I have been advised that could be sooner depending on bed availability.

    29. I am drug and alcohol free and I am determined to remain that way. I am continuing my therapy post discharge attending daily meetings with AA & NA, with a counsellor Ms PP that specialises in Drug and alcohol addiction. I follow the 12-step program daily in my life and am working on the part issues that I have avoided to ensure I stay clean and healthy moving forward. Now shown to me and marked “B-1” is a true and correct copy of a letter from GG Centre dated 13 July 2020 in support of my progress.

26. This was the first admission by the mother that she took and/ or was addicted to illicit substances and alcohol.

27. On 22 July 2020 interim consent orders were made providing that the wife have leave to withdraw her contravention application, and that the husband and wife engage Ms AF in non-reportable therapeutic counselling for the children. The boys remained in the father’s care.

28. On 22 October 2020 it was ordered, inter alia, that the parents undergo a psychiatric assessment by Dr H. It was further ordered that the matter be fixed for final hearing on 28 June 2021. The final hearing date was subsequently altered to 21 June 2021 and has since been vacated.

29. On 9 April 2021 the mother filed a further contravention application alleging that from 4 February 2021 to 1 April 2021 the father had, without reasonable excuse, failed to make the children available for time with her on Thursdays and Sundays in accordance with the Order made 4 June 2020. That contravention application was returnable on 13 April 2021. In the mother’s affidavit in support, affirmed on 8 April 2021, she deposed:

    8. In May 2020, Mr Eastick withheld the children alleging that I had been taking illicit drugs or consuming alcohol to excess. I acknowledge that I previously denied this allegation and that I am taking steps to address what I now recognise to be an addiction to illicit substances and alcohol.

    9. Most recently, in February 2021, despite orders being in place for the children’s time with me to be supervised, Mr Eastick has denied time altogether.

1. The mother further deposed to initially having agreed to a suspension of time with the boys from February 2021 until the psychiatric report of Dr H was published providing that her arrangements for X’s birthday party were adhered to and there could be regular telephone communication between the children and the mother. The father did not adhere to the conditions and the mother filed the contravention application.

2. In 2021 the boys have spent very limited time with the mother. The mother saw them on 18, 20 and 24 January and 4 February and 7 April 2021. The visit on 7 April was the visit that Ms K wanted to occur prior to the Family Report. On that occasion, X attended time with the mother, his bracelet was broken and ran away from her. X had the father’s telephone number on a piece of paper in his pocket which the mother asserts is proof that X running away was planned by the father. The father describes X as being so anxious about seeing the mother that he vomited before the appointed time commenced. There has been no time face to face since 7 April 2021.

   PSYCHIATRIC ASSESSMENT OF DR H

3. Both parents were assessed by Dr H. His report is dated 15 February 2021 and was released in March 2021.

4. Dr H observed[12]:

   [12] Report of Dr H dated 15 February 2021 pages 12-14.

   SUMMARY

   Ms Burrows described a difficult childhood. Whilst loved and cared for by her parents, she was extensively sexually abused over a three year period by her stepfather’s brother which resulted in significant harm causing her to turn to alcohol at an early age as well as cocaine. Her account of her lifestyle was that she’d essentially worked hard to make her way through life, eventually undertaking a variety of courses to get ahead and secure a stable future. This assessment occurs in the context of Family Court proceedings, noting that her marriage to Mr Eastick previously ended in contested circumstances before the Court.

   Subsequently she described herself as being constantly pressured and threatened by Mr Eastick, denied a variety of allegations raised by him (multiple partners and moves, under-mining of his relationship with the children, unstable lifestyle). Significantly her Affidavit of 3rd March 2020 adamantly denies the allegations of drug and alcohol abuse, ‘I do not take illicit drugs, I do not drink and drive’ which flies in the face now proven hair follicle testing confirming significant drug and alcohol abuse which calls into question not only Ms Burrows’ insight in respect to such matters but also her veracity.

   As such, not surprisingly at interview Ms Burrows presented as uncomfortable, at times defensive having to acknowledge the presence and significance of her drug-affected lifestyle on herself and the children, adding somewhat plaintively that this was something that she would have to live with for the rest of her life and that she was now attending appropriate drug and alcohol counselling and currently abstinent of alcohol and drugs.

   Similarly, whilst she depicted Mr Eastick as unerringly critical and undermining of herself and her relationship with the children, when confronted with the reality of her situation, Ms Burrows gave some ground in understanding the negative implications of such behaviours and activities on her parenting capacity and impact on the children’s lives and wellbeing, commenting further that her treatment was likely to be prolonged, if not a lifelong struggle to achieve sobriety and to avoid further substance abuse.

   DIAGNOSIS

   • Adjustment Disorder with Depressed and Anxious Mood

   • Drug & Alcohol Abuse

   • Borderline Personality Traits

   OPINION

   1. This is a matter in which earlier proceedings were settled with Final Orders noting ongoing issues between the parties from 2019 onwards culminating in the current proceedings in the context of Ms Burrows’ now proven drug and alcohol abuse. As noted Mr Eastick is a Managing Director, having previously been married prior to that with Ms Burrows, and is currently re-partnered. Whilst Ms Burrows makes various negative allegations in regard to his part in the marriage and the raising of the children, indicating that she was at all times the primary caregiver, it was his account that her unstable lifestyle and various choices of partners precipitated the current proceedings in the context of increasing concern about the wellbeing of the children in those circumstances.

   2. At interview Mr Eastick was at all times pleasant, if not ebullient and whilst it is likely that his account, which was positive in regard to his life and relationship with the children, may be a somewhat superficial rendition of his relationship with Ms Burrows, he does not have a psychiatric history, nor is there any convincing evidence of a Personality Disorder, spoke lovingly of the children and reports a stable relationship with his current partner as well as X and Y. As I understand it, his application involves sole parental responsibility of the children

   3. Whilst initially denying her now proven substance and alcohol abuse, Ms Burrows acknowledges that her life was out of control in those circumstances and occurred on a background of significant early childhood sexual abuse which to her credit she sought appropriate psychological treatment and remediation. She impressed as having struggled hard to establish herself in the world and career, and following the ending of the marriage to Mr Eastick in which she described herself as the primary caregiver of those children and was involved in a series of attempts of rectifying the difficulties between them involving marital counselling, nonetheless it appears that her life descended into a state of chaos in the context of substance and alcohol abuse.

   4. Throughout her account Ms Burrows attempted to defend herself in regard to her failure to complete the drug and alcohol rehabilitation programs involved on the basis of various claimed medical reasons which in the context of her now established substance abuse raises significant issues in regard to her veracity, self-assessment and claimed determination to rehabilitate herself and restore her relationship with the children.

   5. Mr Eastick does not represent a risk to the children from a psychiatric perspective whereas Ms Burrows impresses as in the very early stages of drug and alcohol remediation, an endeavour which is very much a work in progress. Earlier failed treatment endeavours were explained away on medical grounds and I was not convinced that they were the more significant reasons for her not completing those drug and alcohol assessments and treatments, and as recently as the time of the originally arranged assessment with myself which she did not attend, Ms Burrows was ‘hospitalised’ for similar reasons.

   6. As such I was left with the distinct impression that Ms Burrows has been inclined to manipulate and massage the truth and whilst apparently remorseful and determined to rehabilitate herself, nonetheless she remains at significant risk of relapse, and with that a deterioration in her psychiatric condition. Further light will be thrown on the relationship between the children and their parents, contact and residence implications by Ms K’s forthcoming Family Report.

   7. I have not seen the children and the report needs to be read accordingly.

5. Dr H gave evidence on 29 April 2021 and I have set out earlier in these reasons at paragraph [18] his support for a moratorium of time between the mother and the children.

6. Dr H’s assessment of the parents is insightful. His opinions were not challenged in any meaningful sense. I accept and am significantly assisted by Dr H’s evidence.

   EVIDENCE OF PRIVATE FAMILY REPORT WRITER MS K

7. A family report was prepared by Ms K, private family report writer. Ms K’s qualifications were provided and are not in issue. She is a psychologist and previously a Senior Family Consultant in this Registry of the family courts. There have been previous reports to which I was not taken including by Ms AG (March 2015) and Ms AH (June 2017) although there is a discussion of the context of historical reports in the report of Dr H.

8. The report by Ms K is dated 24 April 2021.[13] Ms K conducted interviews on Friday, 9 April 2021 which was two days after the boys had seen the mother in preparation for the report interviews at which time X had become upset and had run away from the mother.

   [13] Affidavit of Ms K affirmed 24 April 2021

9. Ms K had access to the assessment of Dr H dated 15 February 2021.

10. Ms K found the father’s presentation and that of his wife to be unremarkable and the father’s account to be consistent with this affidavit material.

11. Ms K observed the mother to be punctual and polite and fashionably dressed. Her other observations were:

    13. The respondent mother […] mild motor agitation was noted in the form of a shoulder twitch. Her mood was labile and her affect anxious. Her speech was pressured; her account was verbose and had a superficial quality to it. Ms Burrows’ attitude varied according to the issue discussed. She struggled to make connections between her drug use, behaviour and any impact on the children. Her narrative placed responsibility for the children’s reported distress with their father.

    14. Ms Burrows said she had been “clean for 90 days” following a period of ‘at home’ detoxification assisted by ongoing engagement in treatment with a range of health practitioners. Ms Burrows has twice-weekly meetings with her Psychologist that allow for greater insights into her addiction, triggers and recovery. She has access to online support as well as an NA sponsor. Ms Burrows commenced weekly supervised screens last year and understands that further hair follicle testing will occur every three months. Ms Burrows reported feelings of wellness at the time of assessment saying she had a new circle of friends and a clarity of thought not previously experienced.

    15. Ms Burrows opted for home-based support following her decision to discontinue treatment at QQ Hospital in circumstances where she felt unsafe on the ward. Prior to the admission at QQ Hospital, Ms Burrows attended inpatient programs through “FF Health Centre” and later “GG Centre.” Her stays were interrupted by health concerns and staff at GG Centre concluded Ms Burrows’ needs would be better met in a hospital-based setting. Subpoenaed notes from FF Health Centre were generally in accordance with Ms Burrows’ account around her admission however one case note of her contribution to a group session stood out. It read that at the age of four years Ms Burrows assaulted her father. The note subsequently says, “He lived.”

    16. Ms Burrows reported having been in “active addiction for about 12 to 18 months and that during that time her “sobriety had gone out the window.” Ms defined herself as a “high functioning” addict whose substance misuse increased with her level of parental responsibility. She defined herself as “high functioning” on grounds that she managed to conduct a profitable business and could solely parent the children. She described there were occasions where her substance use enabled every day parenting tasks saying, “it would be a pick me up….to get my heart started so I could clean the house do the meal prep and kick a ball with my son.” Ms Burrows felt unsupported by Mr Eastick and his continued “harassment” of her often triggered substance misuse. When asked about the impact of her use on the boys' Ms Burrows claims they were “never exposed” and had “no idea.” She stressed to the writer, “I never took drugs in front of children, it was only on weekends when I didn’t have the kids, there was zero exposure.” Ms Burrows commented that her mother was a great support to both her and the boys and her presence often acted to compensate for any deficits in Ms Burrows’ functioning.

    17. Ms Burrows explained that claims of her being a neglectful parent who prioritised her lifestyle needs and substance use over the children were spurious. She noted that the reports emanated from conflicted sources such as former partners whom IVO’s have been taken out against. She said that Mr EE’s reports to Mr Eastick were not done so with concern for the children rather a need to punish Ms Burrows for her support of Police intervention that him charged with a range of criminal offences, one being a break-in at her home. Ms Burrows denied the boys were exposed to family violence or to inappropriate adult behaviour at the maternal home. She acknowledged that some violence perpetrated against her occurred at her home but that the boys were with their father at those times. She said reports of Mr M sleeping in the boys’ beds were untrue and while on occasion he would stay at the home, he did so in a separate room. He, like many of these men, was classified as a “former business partner” by Ms Burrows. She said, “These are reports from ex’s, they’re against me, Mr Eastick's against me, it's a setup, I've talked to DHS about this, they said I wasn't a risk…I know Mr Eastick has told X to say differently.”

    18. Ms Burrows emphasised that the resumption of her role as primary caregiver to X and Y was realistic and achievable, and the process was unlikely to be supported by Mr Eastick, whom she believes will undermine her efforts. She reported that in previous years he had used litigation to control and coerce her, has used authorities to harass and scrutinise her parenting and more recently, arranged surveillance of her at her property. Ms Burrows’ discovery of the private investigator’s report left her feeling unsafe and fearful of what Mr Eastick may do next.

    […]

    21. …The overwhelming sense from Ms Burrows’ narrative was one of feeling victimised and disadvantaged by the unfolding of recent events.

12. The mother’s admission to Ms K of using illicit drugs and abusing alcohol dates her consumption from October 2019 or April 2020. It is consistent with the mother’s drug use as alleged by the father in January 2020 based on evidence from friends (former friends) of the mother and includes the period during which DHHS had received two notifications but not investigated the matter.

13. Ms K interviewed X and Y. Ms K’s observations inform the court of the nature, maturity and characteristics of the children.[14] In relation to X, Ms K’s observations included the following:

    26. At interview, X’s communication style was noted to be idiosyncratic. For example, he interrupted the writer’s introduction with, “I already know that, what questions do you want to ask me?” This was said without any underlying frustration or defiance toward the writer. X’s mood and affect were congruent. He was mildly anxious and his need to control the interview process was noted. To reduce pressure on X to provide a verbal account, he was asked to engage in a pencil and paper exercise designed to explore children’s beliefs about their parents’ separation that force a ‘yes/no’ response.

    27. The questions cued verbal responses from X as he completed the task. He would expand and explain his answer or comment on why he provided an alternate response. For example, he commented, “Not many kids know my mum and dad are divorced so they don’t ask me… I will leave that blank.” X then added, “Some of these are not ‘yes’ or ‘no’ so I’m not putting a cross there.” X marked ‘yes’ to the statement “I feel my parents still love me.” X's responses suggested he held his father in high regard and felt his mother was responsible for the difficulties they experienced as a family. Many of his responses to items about his mother were negative. X explained that his mother “lied all the time, about everything”, that she “didn’t look after us properly,” “drinks wine and tricks everyone” and was “only nice when other people are watching… like today.”

    […]

    29. In contrast to that report, X described his home and school life in positive terms. He engaged easily around his love of science saying, “I’m kind of smart” and with that, wore a broad smile. When drawing his family circle he included his older brother and sister and Ms XX’s parents whom he was visiting over the weekend. X said he didn’t want to change anything about life at home with his father. When asked what would be different if he woke the following day to a perfect world he replied, “Mum would get better…. she would be better, that’s the only thing.”

    [14] Family Law Act 1975 (Cth) s 60CC(3)(g).

14. Ms K interviewed Y, she recorded:

    30. Y presented as confident and comfortable in a novel setting. He displayed no behavioural indicators of stress, has a soft voice and engaged well with the writer. He displayed an impressive ability to talk with ease on a wide range of topics.

    31. Y’s understanding of the reason for his attendance was age-appropriate. He understood he would be seeing his mother and "talking about me and my family.” When the reportable nature of the process was explained to Y he expressed some worry that his mother might be angry when she read what he said about her. Y felt the worry wasn't so big that he couldn't talk but big enough to make him think about what he said. With little prompting, Y explained that he had been asked about his family on previous occasions. His account of the move from his mother’s to his father’s care was commented on in a matter of fact manner. He said, “Now we live more with Dad and less with Mum but we still go to the same school.” Y reported a strong preference for a continuation of this arrangement. He said there were times when he missed his Mum. He said, “Just when we were around at home and stuff…. it was fun.”

    32. Y understood that he saw his mother with his grandmother present because “Mum needs to get better.” He said that before moving to the fulltime care of his father his mother "didn't get up in the morning…. X helped me with school and with my breakfast.” Y said that he was scared of his mother when she drank too much, and when she had lots of friends come over…we would stay up all night, I kept the light on.” Y recalled his mother’s male friend sometimes slept in his bed and sometimes in X’s bed. Y said, “I don’t know why he slept in there, he was just there when I woke up in the morning.”

    33. While Y’s resistance to seeing his mother was not as acute as that of his older brother it was present nonetheless. Like his brother he wanted his mother to “get better” before seeing her again and when asked what that looked like he said, “I don’t know really, being caring….I think she has been taking drugs.” Y said his brother told him so. Y was uncertain as to whether he would return to live with his mother but reported confidently that he wished to remain living with his father. He felt close to his father, stepmother and brothers, inclusive of Mr S, comfortable in his routine and happy with his out of school activities. After the interview, Y spoke with ease about his sporting abilities and love of ball sports.

15. In the context of a final hearing Ms K’s recommendations were that until further order X and Y continued to reside with their father, they be permitted to use FaceTime to communicate with their mother “if they so wish”. Ms K’s further recommendations were:

    Ms Burrows is to cooperate with screening for substance misuse as requested by the ICL.

    Ms Burrows is to provide consent for any treating practitioner to release information to the ICL as and when requested and the ICL be permitted to share those reports with the father’s solicitor.

    X and Y are to continue to engage with Ms G (or another practitioner as agreed between the parties).

    The matter be referred back to the writer in six months (or earlier if the reconnection work between the children and their mother requires reviewing), and that in the intervening period, the ICL be permitted to liaise with the writer for further opinion or issues relating to the children's best interests. It is noted this recommendation does not align with the final hearing date.

1. I found Ms K to be a knowledgeable and competent expert witness. Her evidence and response to questions were well reasoned. I accept her evidence.

   DISCUSSION

2. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations insofar as they are relevant, listed in s 60CC of the Act.

3. Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities. In these reasons, a statement of fact is a finding of fact for the purpose of this interim hearing. Because this is an interim hearing and the evidence of the parents has not been tested, my ability to make findings is limited and conclusions that I reach on these applications may be overtaken by subsequent evidence adduced later.

4. The primary considerations in s 60CC(2) and are described as follows:

   (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

   with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[15]

   [15] Family Law Act 1975 (Cth) s 60CC(2)(b).

5. The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, ascertaining the benefit that may flow for the children in having a meaningful relationship with both parents and what is necessary to ensure that they are protected from harm and exposure to abuse, neglect or family violence. Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the Court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[16]

   [16] B & B: Family Law Reform Act (1997) FLC 92-755.

   Mother’s drug use

6. The Independent Children’s Lawyer filed a Summary of Issues on 24 May 2021. The Independent Children’s Lawyer’s principal concern is the mother’s continued abuse of drugs and alcohol. The summary refers to the false denials by the mother of drug use including the mother stating that she had relapsed in November 2020, ingesting 1½ lines of cocaine per day and drinking at least a bottle of wine per day. This period of relapse was described as spanning between November 2020 and New Years Eve 2021. Subsequently, however, Ms Burrows revealed that she had in fact been abusing alcohol “for a considerable block of time …. possibly up to eighteen months.” I take this to be the 12 to 18 months to which the mother referred “sobriety went out the window” recorded by Ms K.

7. Counsel for the Independent Children’s Lawyer, Mr Marchetti, focussed on concerns about the mother’s compliance with drug testing, in particular, the hair follicle test she was obliged to undergo after the hearing on 29 April 2021. It was clear from the Order of 29 April 2020 that Ms Burrows was directed to undertake (within 24 hours) a supervised hair follicle test at an AM Clinic[17]. That direction was followed up by the Independent Children’s Lawyer. However, test was undertaken by a clinic other than AM Clinic, there is no indication as to whether or not there was supervision as to the collection of the specimen and there is no indication as to a chain of custody. The test was conducted on 4 May 2021 which was four days later than the 24 hours specified. Whereas the Order required the mother to authorise the Independent Children’s Lawyer to obtain the results of the test directly from the testing facility, the results appear to have been published on 11 May 2021 and not sent to Independent Children’s Lawyer by the mother’s lawyers until 17 May 2021 and then that may have been a ‘re-released” report. The test results reported to the Independent Children’s Lawyer were:

   ·Cocaine ~2.1 ng/mg

   ·Benzoylecgonine ~1.1 ng/mg

   ·Cocaethylene ~0.4 ng/mg

   ·Oxycodone ~0.04 ng/mg

   ·Tramadol ~1.0 ng/mg

   ·Tapentadol ~0.1 ng/mg

   ·Nordiazepam ~0.2 ng/mg

   [17] AM Clinic

8. The mother filed an affidavit explaining the report of the drug test taken by her on 4 May 2021. The test was taken by AJ Health Team. The mother’s solicitors then sought an analysis of the results of the test from another pathologist, AK Pathologist. On behalf of the father it was submitted that the mother’s reliance on an analysis by a third pathologist “smacks again of shopping around for someone to say that which she wants them to say”. There is some merit in that point, particularly as the mother’s practitioners had more than adequate time to prepare the mother’s case for this interim hearing and to fill conspicuous gaps in the evidence.

9. The report from AK Pathologist, dated 24 May 2021 stated that, from the hair sample which should produce a reading for the previous three months, there was detection of cocaine indicative of a combination or possibilities including irregular use of cocaine, or short periods of heavy use of cocaine or residual amounts of drug remaining in the mother’s hair. The report also referred to detection of Oxycodone and Tramadol, notwithstanding that the mother had told Dr H in February 2021 that she was no longer taking those medications. For reasons again not detailed, the mother was reported to have undertaken a hair follicle test through a fourth pathologist, the AL Clinic, rather than AM Clinic.

10. In her affidavit, the mother she asserts at [22] that her hair grows more slowly than other people although, apart from the mother’s own assertion, there is no evidence of slow hair growth. There was no explanation as to the detection of the other two opioid based pain relieving medications, Oxycodone and Tramadol, in her system. There is an acknowledgement that she had relapsed in terms of drug usage and confirms that she had used substances in the period up until the end of December 2020.

11. The mother deposes that she has re-engaged with supports and specifically with one Mr VV, by commencing a 12 week rehab course. The mother annexes a report by Mr VV, dated 17 March 2021. Counsel for the Independent Children’s Lawyer submitted that a 12 week drug rehabilitation course which was commenced on or about 17 March 2021 should have completed by 27 April 2021 but there is no evidence of completion. As far as the Independent Children’s Lawyer is concerned, abstinence and clarity as to abstinence in relation to the mother’s alcohol and substance abuse remains very much an issue.

12. Mr Dickson, for the father, submitted that the mother’s evidence about abstinence and treatment was of concern[18]:

    “She produced and attached to that affidavit, urinalysis test results from 21 February and 22 March. Why there wasn’t 21 or 22 April and/or May, given that it was deposed to on 26 May, is anyone’s guess. But there’s no explanation proffered in that affidavit sworn in late May. Extraordinarily, in my submission, she says: “I re-engaged with my .....”. We don’t know what‘re-engaged’ meant, because she never told us before that she had engaged with him previously, but she re-engaged with her counsellor, Mr VV, from WW Services, Victoria on the second of this year and “an AMED hearing” present tense, this is sworn in late May – AMED hearing to a 12 week rehabilitation plan followed by a further 12 week after care support plan. And extraordinarily, not only does Mr VV, in the document attached at B2, say nothing of his previous engagement with her or the reason why it might have broken down and why the re-engagement happened.”

    [18] Transcript in Confidence, 28 May 2021, p.37, 25-43.

13. At this stage of the proceedings there are gaps in evidence about the mother’s rehabilitation which only she can fill. On the current evidence, I am left with a distinct impression that the mother has not engaged in a meaningful sense with abstinence or rehabilitation for drug and/or alcohol abuse.

    Children’s views

14. In determining what is in a child’s best interests the Court must consider, amongst other factors, any views expressed by a child and any other factors that the Court thinks are relevant to the weight to be accorded to a child’s views[19].

    [19] Family Law Act 1975 (Cth) s 60CC(3)(a).

15. Earlier in these reasons (see paragraphs 62 and 63), I have extracted the observations of Ms K which capture aspects of the children’s views.

16. Counsel for the Independent Children’s Lawyer described the children’s views in the context of the need to accord the views of the children not to see the mother and more weight than the mother’s need to see the children. He submitted that the mother’s address to the court was, in part, self-centred, he referred to the mother’s statement that:

    I do not deserve to have the children taken away from me.

    It is unfair to take the children away from me.

17. Mr Marchetti continued:

    This is a situation where, your Honour, the children are exhausted, in my submission. You see references in Ms K’s report whereby the children are reported to be angry, the children are reported to be despondent. The children are just simply exhausted by the situations that they have been exposed to in their mother’s care. In my submission, consistent with the recommendations by Dr H – and you’ve heard the evidence today by Ms K, there should be afforded an opportunity which your Honour quite correctly true, and that is at paragraph 40 of Ms K’s report, to the extent that X and Y need to be afforded some protection, and in my view, and adding, some respite from their mother.

18. In relation to the proposed moratorium of time between the children and the mother, Mr Marchetti submitted:

    The position advanced really does enable Ms Burrows to have the opportunity to address those substance and alcohol issues, and then GG Centre herself in terms of being available and prioritising the children’s needs.

19. Counsel for the Independent Children’s Lawyer reminded me that the Independent Children’s Lawyer had met with the boys and both boys described very frightening incidences of spending time with their mother. They also suggested that it would be better – and Mr Marchetti paraphrased - in terms of what was said, but a “break until she gets better,” were the words that they used.

20. Counsel for the Independent Children’s Lawyer did not support telephone, FaceTime or audio visual communication with the mother. The boys have been specific in complaints that such communication is unpleasant and difficult. Reference was made by the father to an incident which was recorded by Ms K in the following terms:

    Mr Eastick’s account of the boys’ time with their mother raised concern about the appropriateness of the supervisor, the behaviour of Ms Burrows during those encounters and the impact of this on both boys’ emotional wellbeing. Mr Eastick reported that X displays a range of anxious symptoms in the lead up to time spent and has at times, vomited. During a recent facetime call Y was distressed at his mother’s conduct and during a call on X’s birthday call, Ms Burrows passed the phone to other adults at her home with whom she appeared to be “partying” and those adults were cheering X however they were strangers to him, and he was bewildered and upset after the call.

21. The children are young. In many matters their views would not be determinative. I do not regard their current desire not to see the mother to be determinative but I do give it weight. I hold the views expressed by me in Bryce & Bryce [2020] FamCA 653 that once the views of the children are ascertained in proceedings like this, the court has a duty to protect the children from any foreseeable backlash or repercussions of their parenting having been informed of the views. In this case I have grave concerns that the mothers lacks the capacity to deal constructively with the boys’ views at this time.

    The children’s relationships

22. I consider the nature of the children’s relationship with each of the parents and other persons.[20]

    [20] Family Law Act 1975 (Cth) s 60CC(3)(b).

23. Ms K observed the interaction between the boys each parent. She described the interaction with the father and Ms XX to be appropriate, “cohesive, familiar, warm and mutually rewarding.” Ms K reported:

    23. Mr Eastick and Ms XX encouraged the boys to “have fun” with their mother and then swiftly departed. As they did so the energy and positivity seemed to leave with them. When Ms Burrows entered with a smile and inquiry about their game, the boys averted her gaze and focussed elsewhere. Ms Burrows adjusted the tone of her talk to match the mood of the room and the boys were quiet and began to argue. As Ms Burrows intervened Y got up off the floor and looked for a different game. He returned with a board game that had a dice. To promote dialogue Ms Burrows talked about the different pronunciation of dice ("die") and the boys retorted with, “no it’s not.” After some back and forth on the issue Ms Burrows began to argue with the children and the tone of her voice was stern. She ended the discussion with, “Well that’s what it’s called” and the boys averted her gaze.

    24. The scene began to unravel as Y refused to play with the chosen game and X continued to play, becoming annoyed at the world around him. Ms Burrows found herself reacting to the boys’ protests with remarks such as “It’s not all about you X” in a frustrated tone. The tension in the room was palpable and time seemed to pass very slowly. Ms Burrows tried to reengage the boys around a different and neutral topic ("What else have you been up to?") and the boys responded with one word, negating answers such as "nothing." At the end of the session, Ms Burrows farewelled the boys with a level of strained and unreciprocated affection.

24. I am satisfied that, at this stage, the mother’s relationship with the boys is fraught.

25. Counsel for the mother submitted that “the main issue to balance […] between whether or not the children’s short term distress that might arise from a resistance towards spending time with their mother, expressing anger, whether that overrides that potential risk that they might not reconnect with her, at all.” Within that submission there is some recognition that the mother’s relationship with the boys is different however there is inadequate recognition of the legitimate need of the boys to feel physically and emotionally safe. The suggestion of counsel for the mother was that there should be still further face to face time between the boys and the mother with liberty to the father or the Independent Children’s Lawyer to make application for a suspension of time if the boys remain upset. In my view, the boys have been through a great deal in the last two years. They have both stated clearly to Ms K that they want a break from seeing the mother. The lack of face to face time or communication with the mother will not come as a surprise to them.

26. My impression is that, at this stage, the mother is struggling to differentiate the children’s needs from her own. For instance, in her lengthy address to the court, she stated:

    “My priority is the children, but my biggest also priority is to be clean and stay emotionally stable and a functioning adult, as a parent for my – I’m not perfect. No parent is. I made the biggest mistake of my life. I’m paying for it and my kids are paying for it. But that does not mean that I should be shut out of their lives. The family report stated that I should not be cut off from my children. There should be some contact, including supervised, whether it was my mother at the time or even a situation where someone came to my home and they can monitor and report or photograph or whatever. My children need their mother. And I need them. I don’t want to disillusion them and feel like I’ve failed because I haven’t made an effort. I have jumped through hoops and I will continue to do that in my children and my best interest. I’m not hurting them. I’m not beating them.”

27. I recognise the importance of the boys’ relationship with the mother but, at this stage, the boys appear not to be able to enjoy time with the mother. They are described by the Family Report writer as scared and fearful. My hope is that this is temporary. However, at the moment, the boys relationship with the mother will most benefit from a period of no direct contact.

    Parental capacity and responsibilities of parenthood

28. The capacity of the parents to meet the children’s needs[21] and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[22] is an important consideration in this interim determination. Ms K, observed:

    36. There is a groundswell of concern in relation to Ms Burrows’ capacity to safely parent X and Y. Recent admissions made by her about her relationship with substance misuse follow a protracted period of litigation in which she not only challenged the veracity of those claims, but challenged the testing procedure. A specialist report that analysed the analysis revealed Ms Burrows's substance misuse and denials were more extensive than first thought. The reports also represents the lengths to which Ms Burrows went to deny her substance misuse. While her recent admissions to Dr H and her assertions about abstinence are encouraging, they have arisen after a long and resource-intensive exercise to arrive at that eventuality. The extent to which Ms Burrows’ narrative around her use can be believed will be a matter for the Court and presumably subject to ongoing testing.

    37. Mr Eastick and Ms XX were assessed to be competent and psychologically stable caregivers, balancing both care and control in their approach to parenting tasks. Their responses were observed to be emotionally attuned and intuitive in style. They were skilled in anticipating and juggling the boys' differing needs and temperaments and were equitable in their distribution of affection, attention and focus. The household routine and parenting schedule appears to be organised around the boys’ development need for routine and there is a high value placed on family time, education and the development and support of the boys’ strengths and abilities. The parenting styles of Mr Eastick and Ms XX are a good fit for the boys’ developmental needs and the boys are thriving in this environment. The court may be assisted in any final determination by school records. Academic and social performance can be a strong indicator of a child’s wellbeing and comparing records across the recent history may be illuminating.

    38. Ms Burrows' parenting style and more specifically the parent-child interaction observed gave rise to concern about her ability to attune herself to the boys' needs. Both the recording (listened to after interviews were conducted) and the formal observation suggest Ms Burrows’ parenting style is low in warmth. In the only professionally assessed interaction of the parentchild dynamic Ms Burrows was unable to elevate the children’s needs above her own or manage her frustration tolerance. Her quibble over the pronunciation of a word and her stern remarks to X suggest she is modelling a style of parenting incompatible with the boys’ emotional needs, particularly X given his anxious presentation. The tone of Ms Burrows’ voice in the recording and the forcefulness of her instruction to X along with her blatant telling of a lie (that she had turned the recording off when it was still on) feed very obviously into the boys’ experience of her as a figure of mistrust.

    39. There are allegations that the boys’ accounts of Ms Burrows have been amplified and unduly influenced by their father. There are counter allegations that Ms Burrows has served to shape the boys’ narrative in preparation for the family report assessment. In conflicted parenting disputes marked by allegation and counter allegation around risk, children are frequently triangulated into the dispute and align with a preferred parent. In Mr Eastick's explanations to the boys, there is a likelihood the boys have received some information they ought to have been protected from however if, as the DFFH suggest, the children have been traumatised by a lived experience of their mother, it is not uncommon for children to struggle to find words for those experiences. Simple explanations by caregivers such as “Mum was using drugs” may be inappropriate, but in the context of processing the experience, it allows children to make sense of experiences they are not psychologically skilled to process. Even if the Court were to adopt a cautious view of the children’s wishes as a factor shaping the outcome of the dispute, the risk observed in Ms Burrows’ parenting remains evident.

    40. The writer concluded that at this point, X and Y need to be afforded some protection from their mother. Their needs are well met in their care of their father. Given the recency of Ms Burrows’ acknowledged drug use, her interrupted residential rehabilitation and the uncertainty surrounding her claims of treatment progress (and abstinence) and the prognosis as indicated by Dr H, a staged approach to determining the final parenting arrangements may be beneficial for the children. Interventions and parenting arrangements that support the children's stability should be prioritised and consideration be given to professionally supported time between the boys and their mother while she attends to the risks issues outlined in this and other assessments.

    41. The writer concluded that the maternal grandmother should be relieved of her responsibility to support her daughter’s relationship with the children. There is sufficient information available from the boys’ narrative to suggest the maternal grandmother’s presence does not reduce their feelings of fear and worry. Furthermore, there is a need for Ms Burrows to receive professional guidance on more appropriate strategies to manage the boys’ anxieties and attune herself to their world. At this stage, any work reconnecting the children to their mother ought to be therapeutically supported and undertaken by skilled practitioners with experience in this field. Two programs that meet these criteria are listed in the recommendations.

    [21] Family Law Act 1975 (Cth) s 60CC(3)(f).

    [22] Family Law Act 1975 (Cth) s 60CC(3)(i).

1. At the conclusion of the hearing on 28 May 2021, I made an order requiring the mother to undergo a supervised urine test to detect the consumption of alcohol and illicit substances on that day.  Between now and a final hearing, there are likely to be many more drug tests which the mother is required or requested to undertake notwithstanding that the mother will still not be spending time or communicating with the children or exercising parental responsibility. The serious consequences of parental drug use and alcohol abuse is not something that children can be protected against by merely ensuring that a parent does not take drugs immediately prior to or during spending time with a child. To suggest that testing for drug use and alcohol abuse is only called for or can be imposed when the child will be directly exposed to a parent with an addiction would, in my opinion, indicate a shallow appreciation of the consequences of drug use and alcohol abuse. In my experience of many cases and hearing a lot of expert evidence, drug and alcohol addiction is rarely the primary illness. Frequently it is a symptom of serious underlying mental health condition such as Dr H opines the mother in this case has and Ms K gave evidence would be likely to come to the fore if the mother engages in rehabilitation more successfully. I would have a different view of the appropriateness of testing in the absence of direct contact if the mother was not seeking to spend time with the boys as soon as possible, but she is. In her own words “My children need their mother. And I need them. I don’t want to disillusion them and feel like I’ve failed because I haven’t made an effort. I have jumped through hoops and I will continue to do that in my children and my best interest.”

2. A requirement for the mother to undergo testing would be by injunction pursuant to Section 68B(1) of the Act which provides, inter alia, that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child.

3. The prerequisites for exercise of the injunctive power in children’s cases are that I must have regard to the boys’ best interests as the paramount consideration, within the meaning of s60CA of the Act, and that I be satisfied that the injunction as “appropriate” within the meaning of s68B of the Act. To the extent that the recently published decision by the Full Court in Oberlin v Infeld [2021] FamCAFC 66 suggests that an order of this nature must qualify as an order for the personal protection of a child to be within power, I would confine that discussion by their Honours to the facts of that case.

   PARENTING ARRANGMENTS THAT ARE IN THE CHILDREN’S BEST INTERESTS

4. In determining what is in the best interests of X and Y, I take into account additional considerations under s60CC insofar as they are relevant.  Some of the additional considerations are not relevant and most, if not all, will need to be re-considered in light of more evidence before any firm conclusions can be drawn.

5. The most important consideration is around what orders are necessary to keep the children safe from physical and psychological harm.  Having regard to the expert evidence, the best available option is to give the children some respite from direct involvement with the mother and allow them to settle in the father’s household, return to school, and get some support from their new counsellor with the potential of spending time with the mother.  It is abundantly clear from the evidence that a residential rehabilitation program is highly recommended.

6. I turn to the benefits to the children of having a meaningful relationship with the mother. I assume that were it not for the mother’s addiction or other manifestation of her possible underlying mental health problems, she would still be the primary caregiver for the children.

7. Because of the importance of that relationship, disruptions to that relationship, and the inability of the boys to feel safe with the mother, has been all the more shattering for them than it would have been with someone of much less consequence to them.

8. The mother is obviously very important to the boys. There is no doubt that her relationship with the boys is meaningful, the issue for determination at the final hearing is to what extent that relationship is beneficial to the boys and what orders should be made to obtain the maximum benefit for the boys from the relationship.

9. On the experts’ evidence, as it currently stands, I am satisfied that removing the direct presence of the mother from the boys’ life for next four to six months is going to be less injurious than requiring the boys to cope with a fractured relationship with the mother whose parenting skills appear to be seriously impaired.  The moratorium on time between the boys and the mother will allow the boys to further consolidate their relationship with the father and feel protected in this household.  It is vitally important that they boys have at least one household in which they feel secure.  A moratorium of time may protect the boys’ relationship with the mother from further deterioration.

10. For the time being, the father requiring the boys to spend time or communicate with the mother, may undermine their relationship with him and lessen the sense of security the boys have in his household. I asked Ms K a related question:

    HER HONOUR: […] Can you tell me, please, what impact it would have on the children’s confidence in their father, seeing that it would be their father who was obviously complying with orders of the court to deliver them up to their mother?‑‑‑Sorry, your Honour, and if the contact went well or if the contact didn’t go well?‑‑‑

    MS K:  ‑ ‑ ‑ if it did not go well. Well, I suspect there are some kind of grumbling issues in relation to X and his challenging of his dad around these arrangements. So there’s a possibility that it will start to erode that nice, safe, secure relationship that they have recently had reinforced by being in his primary care. I think that’s the probable risk. Probably less so for Y because he’s a more resilient kid. But certainly, for X, he’s already highly sensitised and he’s already hypervigilant and he already has a deep sense of mistrust about how this process is unfolding. So I think that that would simply add to a whole different lot of experiences, and he might start to put his dad in that pile as well – of people that he doesn’t trust as much as he used to.

    HER HONOUR:What do you mean he has no one?‑‑‑Yes. Potentially yes.

11. I have taken into account the evidence of Ms K, that the longer the interruption in the mother’s direct relationship with the boys, the higher the resistance the boys may be to a re-introduction of time and communication even under the supervision of one of the experts recommended by Ms K.  There is a risk that the boys will become emotionally remote from the mother by virtue of not having seen her since 7 April and prior to then for only a handful of occasions this year, but life and parenthood have risks and risks have to be weighed.  The risk of emotional harm to the boys if they do have direct contact with the mother and her addictions are unchecked is a grave risk and the expert evidence is that risk is something which the boys should be spared.

12. It is important that X and Y have at least one secure base in their emotional lives. On the topic of the immediate emotional needs of the children, Ms K stated:

    So what they need is a basic sense of safety and security. They need a high quality caregiver arrangement and they need some reassurance about their future. And they’re just simple messages that are reinforced at all different levels about how their life is going to unfold, inclusive of some uncertainty about what might happen next. Now, that’s not an unfamiliar thing to them, because that’s what they have experienced so far. But if there is a defined period in which they know they were just being cared for by their father and there won’t be any further arrangements for them to see their mother at this stage, firstly, that provides some clarity. It may well reduce their anxiety. It may well help them fell more contained, which is what you need to do when you’re dealing with anxious kids. And I would think that some of those strategies would be supported and reinforced in the treatment [by Ms G] – in the therapy. […] I don’t think at this stage that there needs to be, necessarily, anything more. Knowing – having a time frame would be helpful for kids, knowing when it’s going to be reviewed. This notion of when and if we’re going to see mum again, that would be helpful for them.

13. It is important that the mother makes the very best of this opportunity to prove that she can treat and control her dependence on drugs and alcohol.  In my opinion, the mother should be required by the Independent Children’s Lawyer to undergo a hair follicle drug test now and then again in September 2021 so the results of those two tests can be compared.  And provide a comprehensive picture of drug and alcohol use since March 2021.  I will not make an order in those terms because the Independent Children’s Lawyer already has the responsibility of requesting that the mother undertake those tests at appropriate intervals.  The Independent Children’s Lawyer is much closer to the case than I am and she may be aware of factors which indicate that the tests should be differently timed.  Whenever the tests are to be undertaken, there should be strict adherence by the mother to whatever drug screening she is reasonably requested to undergo.  As I have discussed above, whilst the mother maintains that she wants to re-assume a direct relationship with the boys, the tests do not need to be proximate to time or communication with the boys or the exercise of parental responsibility.

    PARENTAL RESPONSIBILITY

14. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[25] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-

    …issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

    a)        the child’s education (both current and future); and

    b)        the child’s religious and cultural upbringing; and

    c)        the child’s health; and

    d)        the child’s name; and

    e)        changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

    [25] Ibid s 61B.

15. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[26] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[27] and to ‘make a genuine effort to come to a joint decision about that issue’.[28] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.

    [26] Ibid s 65DAC(2).

    [27] Ibid s 65DAC(3)(a).

    [28] Ibid s 65DAC(3)(b).

16. The parents currently have equal shared parental responsibility for X and Y. The father seeks to alter that on an interim basis so that he can make decisions in relation to the children in an expedient and efficient manner without having to consult or to try to reach a joint decision with the mother. The father semaphored his intention to apply for sole parental responsibility when he was interviewed by Ms K on 7 April 2021. In the Family Report dated 24 April 2021, Ms K records:-

    Mr Eastick […] said, “The problem is that she tells so many lies and makes up so many stories I can’t trust what she says, the DHS report says the kids don’t want to see her…. I figured there needed to be time and space…we need some peace of mind.” Ms XX added, “We don’t want this drama in our lives, we want the boys to be happy and we want Ms Burrows to be okay.” Mr Eastick signalled an intent to follow the advice of child protection authorities and request the time be professionally supervised. He also asserted a need for sole parental responsibility, based on a demonstrated history of poor cooperation around child-centred decisions, and a more timely need to secure X at Q School for next year.

17. At paragraph 5 of the father’s affidavit made 17 May 2021 the father deposes to several instances where the mother has allegedly acted unilaterally and failed to observe her obligation to consult with the father on major long terms decisions. The mother responds to the father’s evidence at paragraph [67] of her affidavit affirmed on 26 May 2021. The father’s allegations include removing the children from one school and enrolling then in another school, moving 80 kilometres away, having X assessed and medicated for Autism and ADHD without notice to the father and taking the children to a multitude of doctors’ appointments without apparent need. If the father’s evidence is correct, the mother does appear to have failed to observe her obligation to consult the father in his capacity as a person whose parental responsibility for the boys is equivalent to her own. The mother denies that she acted unilaterally. In any event, these examples occurred whilst the children were in the primary care of the mother. Now that the children are in the primary care of the father, there is much less opportunity for the mother to implement decisions which she might take unilaterally. Those allegations per se do not persuade me of the need for a change parental responsibility at this stage. However I do have regard to the mother’s false denials and flawed explanations as exemplars of the parents’ inability to negotiate major long term decisions for the children productively and without delay.

18. The father deposes [6] that the mother’s continued use of drugs and alcohol and her mental health issues “have impacted upon Ms Burrows and I being able to make and agree on important decisions concerning the children’s upbringing, including their health, education, and other every day decisions.” The mother’s response was:

    6(k)     […] at the time that I was using cocaine (sic) I considered myself to be a high functioning addict. Although, I understand now about the potential risks to the children, I did not consider at that time that I was placing them at risk and I kept my addiction hidden. Neither the children nor Mr Eastick would have had any insight as to my behaviour.”

19. I am satisfied that the father perceives the mother as having been unreasonable, uncooperative and dishonest and that his perception has some basis in fact.

20. The matters around which the father alleges that equal shared parental responsibility is currently not workable are:

    ·The mother using an Intervention Order to stymie the father’s attendance at school for parent teacher interviews despite, he describes, the mother’s involvement with the children’s school being minimal;

    ·The completion of enrolment forms for Q School in a timely manner,

    ·Who should hold the children’s passports; and

    ·The mother making appointments for the children to see Ms G, psychologist at inconvenient times (including during school hours) and without notice to the father.

    These concerns are more relevant than the father’s historical complaints and I give them weight. I note that the mother denies or qualifies these allegations.

21. Having observed the mother during two hearings and listened to her speak directly to the court, my impression is that, that in her current state of mind, the mother is likely to use any requirement that the father confer with her in relation to major long-term decisions about the children as an opportunity to assert her influence or undermine his authority rather than to direct her attention to the children’s best interests. She presents as aggrieved and self-justifying of her predicament. She thinks that she is a victim. The mother does not present as being ready to co-operate with the father. She appears to still be in self-defensive battle mode.

22. Notably, Ms K, observed:

    Sole parental responsibility is being sought by Mr Eastick. There is a significant history of poor cooperation and conflict around decisions that impact of the boys’ wellbeing. While it will be a matter for final determination by the Court, if Ms Burrows is unable to demonstrate a capacity to safely parent the children, the writer would support Mr Eastick’s proposal.

23. The mother’s demeanour on the MSTeams hearing on 28 May 2021 was disturbing. When counsel for the Independent Children’s Lawyer was addressing the court on the boys’ adverse reaction to the mother, she quite vigorously shook her head and made facial expressions of exaggerated surprise and bewilderment . She made sweeping hand gestures indicating, to me at least, disbelief and incredulity. I asked who she was talking to but she said that she was alone. She grimaced, pulled faces, and looked incredulous in an exaggerated and staged way. This reaction of the mother was not something that her counsel observed because his screen was not adequately configured. Ms K said that she did not observe all of the gestures although interpreted what she did see of the mother’s reaction as being disagreement. Counsel for the Independent Children’s Lawyer said that he had the images of both parents “pinned side by side on my screen. I did note the gestures that your Honour mentioned.”

24. Mr Marchetti informed the court that the Independent Children’s Lawyer required the mother to undergo a supervised urine test for the detection of illicit drugs and alcohol. The mother did not object but requested “a letter to prove that I can come out of lockdown to do the test”. Mr Marchetti nominated AJ Clinic for the drug testing but Ms Burrows corrected him and said that she had previously attended Suburb TT Medical Centre, in Suburb TT, a suburb of Melbourne. Everyone must have understood that the was required to undertake the supervised urine test forthwith and immediately after the court rose. The Independent Children’s Lawyer ascertained that Suburb TT Medical Centre, which would ordinarily be open until 7pm, was closing early. He said “a tentative appointment has been made for her at 10:30 tomorrow [Saturday] morning”. Counsel for the husband commented that a test which was delayed by 18 hours would likely not show the wife’s blood alcohol reading at the time of the hearing. Mr Dickson suggested the mother could attend the Suburb AB Station of Victoria Police and have a breath analysis. Mr Marchetti provided the address of the Suburb AB Police Station being AC Street, Suburb AB and I asked the mother where she was located. The mother responded that she was “currently interstate”, “in Perth”.

25. The mother had failed to disclose her current whereabouts to the court during the fairly lengthy discussion about the location of the Suburb TT Medical Centre and the Suburb AB Station of Victoria Police. She had not been reticent in requesting for a letter authorising her to attend for the essential purpose of having a supervised urine screen for the detection of drugs and alcohol. She interrupted the discussion to state that she did not want to break COVID-19 restriction laws. She interrupted to ask about the possibility she might have traces of alcohol in her system although she was currently sober. Curiously, the mother did not mention that she was in Perth, until asked specifically for her whereabouts.

26. Further enquiries were made by counsel for father and the Independent Children’s Lawyer to locate a suitable pathologist in Perth. The mother said she didn’t have anyone to drive her to the pathology clinic and that she was unable to take an Uber or taxi, she said, because of local restrictions imposed for the pandemic. Counsel for the Independent Children’s Lawyer had a conversation with Mr ZZ, with whose family the mother was visiting. It was arranged that either Mr or Mr ZZ would take the mother to the designated pathology clinic. The mother was given all details for YY Labs situated closest to the mobile home in which the mother was staying outside the residence of her friends, Mr and Mr ZZ. The contact person at the relevant clinic confirmed she would await the mother’s arrival. An order was engrossed and sent to the mother as proof of the essential nature of the mother’s attendance that day on the pathologist and also for the reference of the pathologist.  

1. I am satisfied that, for the time being, it is impractical for the father to be expected to consult with the mother about major long term decisions. The mother presents as focussed entirely on herself and her own needs, which include her desire to be actively involved in the lives of the children. Her perception of herself as having been a high functioning addict who did no harm to the children betrays a lack of insight into her own actions and a capacity to subjugate the interest of others to what suits her. She has been deceptive about her lifestyle and is likely to be avoidant of that which does not suit her in a similar vein to her avoidance of drug testing. If the mother cannot be appropriately responsible for her own welfare she is unlikely to be competent to make decisions about the children’s welfare. It is an imposition on the primary care parent to be required to consult and try to agree with the mother in relation to the welfare of the children.

2. The mother presents to me as someone from whom the father would be challenged to get a straight answer. The inability to make a decision on reasonable terms impinges in a very real way on the best interest of the children who deserve to have long term decisions made promptly and not delayed.

3. The father offers to inform the mother of decisions he makes. He should do so.

4. Section 61DA of the Act provides that, 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. Section 61DA(3) provides that, when a court is making an interim order, the presumption applies unless the court considered that not be appropriate in stances for the presumption to hide when making that order. Section 61DA(4) provides that 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. Section 61DB provides that, if an interim parenting order in relation to a child is made the court must make a final parenting order in relation to the child whilst disregarding the allocation of parental responsibility made in the interim order.

5. Taking all of the above considerations into account, I am satisfied that that is appropriate to alter parental responsibility on an interim basis in favour of a sole parental responsibility order in favour of the father. I do so because I am satisfied that it is not in the children’s best interests to retain equal shared parental responsibility at this time. The presumption in favour of equality is rebutted. This is not a final order and, as the legislation outlined above makes clear, the mother’s opposition to a final order being made in these terms will not be prejudiced by this interim determination. For the avoidance of doubt, sole parental responsibility on an interim basis will continue until a further specific order provides otherwise and will continue notwithstanding that the moratorium on the mother’s time and communication with the children will lapse.

   CONCLUSION

6. For the above reasons I make orders in the terms of the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       12 July 2021