Eddy and Knight

[2007] FamCA 1171

FAMILY COURT OF AUSTRALIA

EDDY & KNIGHT [2007] FamCA 1171

FAMILY LAW – CHILDREN – Change in circumstance justifying changing parenting orders - supervised contact - best interests of child

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Eddy

RESPONDENT: Ms Knight

FILE NUMBER: SYF 103 of 2001

DATE DELIVERED: 26.9.2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Watts J

HEARING DATE: 17.9.2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self represented

SOLICITOR FOR THE RESPONDENT: Levy Partners

Orders

1. All previous orders be discharged.

2. The [male] child … born … April 1995 (“[the child]”) shall live with the father.

3. For twelve months from this date each party is to comply with orders 4 – 14.

4. Each party shall:

   4.1.Contact the Children’s Contact Service at … (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervised time;

   4.2.Attend the assessment;

   4.3.Comply with any appointments made by the Contact Centre for supervised time;

   4.4.Comply with all reasonable rules of the Contact Centre;

   4.5.Comply with all reasonable requests or directions of the staff of the Contact Centre.

5. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in order 6, then each party has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court. 

6. The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party may re-list the matter for mention on 7 days notice.

7. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the mother is to spend time with the child the second Saturday in each month for four hours (or longer if the Contact Centre can facilitate a longer time) at times nominated by the Contact Centre and such contact is to occur at the Contact Centre. 

8. The father or the father’s mother shall deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

9. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 7 then time will be spent at the times which are offered by the Contact Centre.

10. Time under order 7 is to be supervised by the Contact Centre and the father shall pay the fees for the supervision on each occasion of supervision.

11. The mother shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre and the vicinity when their time with the child is to end.

12. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party may on 7 days written notice to the other party and the Court restore the matter to the list.

13. The period of time to be spent provided for in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, time will be spent at times when the services can be provided by the Contact Centre. 

14. Both parties forthwith provide the other an emergency telephone contact number.

15. In the event that the mother is unable to exercise face to face contact in accordance with these orders then she shall telephone the father’s emergency telephone number and inform him of her inability to attend as soon as she is aware that she will be unable to attend.

16. The child have telephone contact with his mother between 5.30pm and 6.00pm each Wednesday and for that purpose:

    16.1.The father is to ensure that the child telephones his mother; and

    16.2.The mother is to inform the father from time to time of her telephone contact number; and

    16.3.The mother is to make herself available to take the call; and

    16.4.If the mother is unable to take the call she is to inform the father of her unavailability with as much notice as she can give.

17. The father encourage and facilitate the child’s communication with his mother by email. 

18. The father shall provide the mother with copies of all the child’s school reports, school photos and newsletters.

19. The father shall notify the mother of any change of address or telephone number at any place that the child resides.

20. Neither parent shall denigrate the other parent to the child or in the presence of the child and will discourage any other person from denigrating the other parent.

21. The parties not discuss any matter that relates to or arises out of these proceedings with the child or in his presence. 

22. The mother not tell the child that she will one day be his primary care giver or any words or other indications that might give the child such a message.

23. The mother not allow the child to engage in a feminine activity during contact and the mother not buy any feminine or predominately pink clothing or gift for the child.

24. Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the child and that until further order that Judge be Justice Watts, if he is reasonably available.

25. The mother is granted a certificate under Section 128 of the Evidence Act 1995 (Cth) regarding evidence given in these proceedings by her on 17 September 2007 concerning her use of a drug on 22-23 February 2007 and in September 2007.

26. The Registry Manager is to prepare for signature the certificate in accordance with form 1 of the Evidence Regulations annexing the relevant parts of the transcript. 

27. That pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

28. This matter be adjourned to 17 September 2008 at 9.30am before me.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Watts delivered this day will for all publication and reporting purposes be referred to as Eddy & Knight. 

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYF 103 of 2001

Mr Eddy

Applicant

And

Ms Knight

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 27 June 2006 I made final orders about the parenting of a male child born in April 1995 after a hearing of four days that took place between 20 and 23 February 2006.  As part of those orders I appointed myself to manage further applications in this case. 

2. The father by way of an amended initiating application filed on 13 September 2007 seeks orders in the following terms:

   1.No supervised contact.

   2.No supervised contact until the mother has attended a drug and alcohol program for whatever time is necessary for her to become drug free, including a mental health evaluation and treatment regarding her continued denial of any drug and behavioural problems she continually displays and how that behaviour impacts on the child.

   3.No supervised contact until the mother can prove that she is drug free by regular blood tests.

   4.No phone calls or emails.

   5.That the father has full custody of the child.

   6.That the child be allowed to have the last few months in primary school uninterrupted by his mother’s destructive behaviour.

3. The orders sought by the father, in effect, seek a variation of orders made by me on 27 June 2006.  

4. The solicitor for the mother indicated that her client’s application was to seek a dismissal of all applications made by the father in his application filed 13 September 2007. 

5. The serious allegations made against the mother are that she was hospitalised involuntarily at the instigation of the police and that there is a suspicion that the mother has been involving herself in drugs and prostitution in circumstances which expose herself to risk and by inference, exposes the child to risk if the child is in her care for an extended period. 

6. Those types of allegations were raised by the father in the previous four day hearing that took place before me in the first half of 2006. My conclusion in relation to the allegations about the mother’s then current use of drugs is contained in paragraphs 217 through to 224 of my judgment.  I concluded that there was then no evidence upon which I could conclude that the mother was then currently taking drugs. 

7. Since June 2006 the mother has lived in at least four places, including two refuges.  The mother originally said that the two younger children had been to three schools since June 2006.  When tested however she conceded that they had been to five schools.  Given the children have gone to five schools in five locations they have probably lived in five places not four since June 2006.  The mother currently lives in a women’s refuge with the two younger children.  The mother is currently looking for housing.  The mother did deny that there was some two month limit in staying in a refuge.  She said it was secure because it was monitored 24 hours a day.  There is no clear evidence as to what her accommodation will be in the long term.

8. In Reasons for Judgement delivered by me on 8 March 2007 (“my previous Reasons”) I noted that this matter had a long and complex history and had come before me for trial for the third occasion.  I predicted that further applications would be made arising out of non compliance with orders and that there would be problems with the mother returning the child at the conclusion of his time with her and other problems in relation to the facilitation of contact.  Unhappily these predictions have turned out to be accurate. 

ORDERS MADE 27 JUNE 2006

1. Orders made on 27 June 2006 were in the following terms:-

   1.That all previous orders be discharged.

   2.That the child … born 1 April 1995 (“[the child]”) shall live with the father.

   3.That [the child] shall have contact with the mother as follows:-

   3.1.For the first three months after the making of these orders on the second Saturday in each month to commence at 11am and conclude at 4pm; and then

   3.2.On the second weekend of each month commencing at 11am and concluding at 4pm on Sunday, except that if the second weekend of the month falls in a school holiday when [the child] would otherwise be with his father then contact shall not take place on that weekend;

   3.3.From 11am on 26 December 2006 until 4pm 2 January 2007 and from 11am on 16 January 2007 until 4pm on 23 January 2007;

   3.4.For school holidays in 2007 and for subsequent school holiday periods (excluding Christmas school holiday periods) for the first half of those school holiday periods to commence at 11am on the first day after school ceases and to end at 4pm on the last day of the first half of those school holidays;

   3.5.For the first half of Christmas school holidays in 2007/2008 (and for the first half of Christmas school holidays in alternate Christmas school holidays thereafter) and for the second half of Christmas school holidays in 2008/2009 (and for the second half of Christmas school holidays in alternate years thereafter) provided that when the mother has [the child] for the second half of Christmas school holidays she return [the child] to his father two clear days before school is to recommence.

   4.That during periods of time that [the child] is with his mother for a period in excess of two days, [the child] shall telephone his father no less than twice a week and in that regard the mother will do everything that she can to facilitate that telephone contact at times that are convenient to the father. 

   5.That until 23 January 2007 for the purpose of contact changeover the parties shall use the [contact centre] whenever available and that the parties do all acts and things necessary to ensure that they make those arrangements with the Centre and both parties shall contribute equally to any costs of the contact service.

   6.That after 23 January 2007 the parties shall use […] for the purposes of contact changeover.

   7.That both parties forthwith provide the other an emergency telephone contact number.

   8.That in the event that the mother is unable to exercise face to face contact in accordance with these orders then she shall telephone the father’s emergency telephone number and inform him of her inability to attend as soon as she is aware that she will be unable to attend.

   9.That [the child] have telephone contact with his mother between 5.30pm and 6.00pm each Wednesday and for that purpose:

   9.1.The father is to ensure that [the child] telephones his mother; and

   9.2.The mother is to inform the father from time to time of her telephone contact number; and

   9.3.The mother is to make herself available to take the call; and

   9.4.If the mother is unable to take the call she is to inform the father of her unavailability with as much notice as she can give.

   10.That the father shall provide the mother with copies of all [the child’s] school reports, school photos and newsletters.

   11.That the father shall notify the mother of any change of address or telephone number at any place that [the child] resides.

   12.That neither parent shall denigrate the other parent to the child or in the presence of the child and will discourage any other person from denigrating the other parent.

   13.That the parties not discuss any matter that relates to or arises out of these proceedings with [the child] or in his presence. 

   14.That the mother not allow [the child] to engage in a feminine activity during contact and the mother not buy any feminine or predominately pink clothing or gift for [the child].

   15.That except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to [the child] and that until further order that Judge be Justice Watts, if he is reasonably available. 

   16.That pursuant to Rule 1.12 Family Law Rules 2004 (“FLR”) the time for starting an appeal from these orders under Rule 22.03 FLR not commence until the publication of the reasons for making these orders.

   17.That pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

MATERIAL RELIED UPON

Father

1. The father relied upon:-

   10.1.Affidavit sworn by the father on 22 August 2007;

   10.2.Affidavit sworn by the father on 11 September 2007.  (The mother had a copy of this affidavit and I was given a copy.  The original although filed in court on 13 September 2007, had not reached the file by 17 September);

   10.3.Affidavit of the father’s mother sworn 24 August 2007;

   10.4.Exhibit A which was a series of emails referred to in paragraph 37 of the father’s affidavit sworn 22 August 2007;

   10.5.Records from the NSW Police Service (exhibit B);

   10.6.Records from Hospital in relation to the mother’s admission to the hospital on 23 February 2007 (exhibit C).

Mother

1. The mother relied upon:

   11.1.An affidavit sworn by the mother on 15 July 2007;

   11.2.An affidavit sworn by the mother on 3 September 2007;

   11.3.An affidavit sworn by the mother on 17 September 2007.

My previous Reasons

1. Reasons for Judgment for orders made on 27 June 2006, delivered 8 March 2007 was Exhibit E.

OUTSTANDING CONTRAVENTION APPLICATIONS

1. The mother had an outstanding contravention application, to which her affidavit of 15 July 2007 related.  The father’s affidavit sworn 11 September 2007 was in support of a contravention application brought by him.  Both parties consented to the dismissal of the outstanding contravention applications.

2. The solicitor for the mother indicated that she did not wish to cross examine the father or the father’s mother.  The mother was cross examined by the father.

CHRONOLOGY

1. The child’s time with his mother took place more or less as ordered in the second six months of 2006. 

2. In late January 2007 the mother had time with the child.  The child was not returned at the end of the scheduled time with his mother.  It was the mother’s assertion that the child had been mistreated and was reluctant to return to the father’s care. 

3. The father made an application for a recovery order before me.  On 31 January 2007 I gave the mother an opportunity to return the child voluntarily without the police being involved and made orders in the following terms:

   1.The father is to collect the child […] born […] April 1995 (“[the child]”) from the mother’s residence at […] this morning.

   2.The mother is not to return to her residence until such time as the father has collected [the child] and left the premises.

   3.Should the father have any difficulties in collecting [the child] this morning he is to contact the court immediately wherein a recovery order will be issued.

4. There has been no face to face contact between the child and his mother since January 2007. 

5. The mother asserts that she attended on 11 February 2007 to collect the child for overnight contact but he was not made available.  The father denies that that is so.  I conclude later that the mother did not attend or attend on time. 

6. On 8 May 2007 the mother’s solicitor contacted the father’s legal representative at LAC Lawyers to attempt to arrange for the child to have time with his mother.  I am satisfied the father did not respond to that request.

7. On 12 July 2007 the mother’s solicitors wrote directly to the father. The father says he did not receive that letter and consequently it is not disputed that the letter sent on 12 July 2007 was not responded to by the father.

8. On 16 July 2007 the mother filed an application for contravention of contact.  Given the terms of order 15 made on 27 June 2006, the matter came before me on 6 August 2007.

9. The father made an assertion on that date that the mother had been scheduled (which turned out to be incorrect).  With the permission of the mother’s solicitor I talked directly to the mother on that day.  The following exchange took place:-

His Honour:	Ms Knight, did you end up in a hospital in February?
The mother:	Yes, I did.
His Honour:	Were you scheduled?
The mother:	I don’t know what scheduled means.
His Honour:	Well, it means they kept you there for your own ---
The mother:	Over – for over – for observation, yes
His Honour:	And how long were you in the hospital for?
The mother:	Just overnight.
His Honour:	And was it a psychiatric hospital?
The mother:	No, it wasn’t, no.
His Honour:	And why were you kept overnight?
The mother:	I was at ---
His Honour:	Why – how did you end up there?
The mother:	I was at a party, and someone had put something in my drink and I had a – yes, I was – I threw up and – and yes, and – yes, I was sick.
His Honour:	Is there any truth in the fact that the police had picked you up naked in the street?
The mother:	No, what had happened was I was seriously ill and my – my bottom half of my – I had like a top tied around me because I had peed myself as well because I was violently ill, so ---
His Honour:	What – you took your clothes off because you had urinated in the bottom part of ---
The mother:	Yes well, I – my skirt was all wet so I just tied my jumper around my waist.

1. On 6 August 2007 I suspended orders that permitted unsupervised time between the child and his mother.  The father indicated at that time that he had no problem with the child seeing his mother as long as that time was supervised.

1. On 22 August 2007 the father filed a response to the mother’s contravention application.  The father sought final orders varying the orders made 27 June 2006. 

2. On 3 September 2007 the mother sought leave to hand up a response to the father’s application and on that day the father produced subpoena material.  The matter was adjourned to 17 September for final hearing.

3. On 12 September 2007 the father served the mother’s solicitors with an unsworn contravention application.

RICE & ASPLUND

1. This is the fourth occasion in which there has been a final hearing in relation to the child.  Given what the Full Court has said in Rice and Asplund (1979) FLC 90-725, I must be satisfied there is some significant change in circumstance that would justify considering the parenting orders made for the child afresh.

2. As these Reasons for Judgment demonstrate, a number of things have happened since I made orders in June 2006.  The main thing that has happened is that orders that I had previously made for the child to see his mother and communicate with his mother have been suspended based on an allegation about the mother being involved in a serious incident which saw her hospitalised.  The father now points to other behaviour on behalf of the mother in relation to prostitution, drugs and risky behaviour arising out of events that have happened since the last hearing. 

3. I am satisfied that these matters constitute a strong ground to reconsider the final orders.

CREDIT

1. On pages 11 and 12 of my previous reasons I said (paragraph 65) that I had difficulty at times with the credibility of both parents and the paternal grandmother.

2. The mother changed what she told me about a number of events.  Again, for reasons which I explain below, I had difficulty accepting much of what the mother told me in response to what is in the police records.  Whilst the police records are untested hearsay documents, the mother’s case is that they are riddled with substantial inaccuracies.  I do not accept that is so. 

PARTICULAR INCIDENTS

29 November 2006 at 11.30am

1. On this day at 11.30am the mother was observed by police seated at the mall with another female.  The mother and her friend were assessed by police as having the typical appearance of drug users and were observed to be loitering in a known high incident drug location.  The reason given by the mother for being there was that she was “resting”.  She was asked to move on by police.

16 December 2006 at 12.40pm

1. At 12.40pm the police observed the mother on her feet, with her head slouched over a nearby perimeter fence.  The police spoke to the mother who appeared to the police to be agitated, paranoid and lethargic in her movements, consistent with recent drug use.  The police’s note is that the mother is a “self confessed drug user”.  The police offered the mother medical treatment which she declined.  The police conducted a search of the mother which revealed two new capped syringes.  The mother was greeted by a friend who offered to look after her and ensure her safe passage home.

2. The mother’s explanation for having two syringes was that she may have used them for the purposes of measuring medicine for her two children.  Instead of taking the whole bottle of medicine she would put the medicine in the syringe and put a cap on it.  Given these syringes were empty, the mother then opined that she might have already given the medicine to the children.  When I pointed out to the mother that the police record was that they were both new capped syringes she changed her evidence to say that she had them to give medicine to her children in the future and that they had not yet been used.  The mother’s oral evidence about the syringes was entirely unconvincing. 

8 January 2007 at 8.40pm

1. At about 8.40pm on Monday 8 January 2007 the mother was at W railway station car park in a motor vehicle with a 63 year old man named Mr J.  The police observed that both Mr J and the mother had their pants down and appeared about to engage in sex.  Both the mother and Mr J did make admission to the police that they were in the vehicle for sex but denied having sex for money.  Prior to the police engaging with the couple the police had sighted the mother walking the streets of the surrounding suburb and had observed the mother getting into Mr J’s motor vehicle.

2. The mother says at paragraph 20 of her affidavit sworn 15 September 2007:-

   “20. I am aware during the course of these proceedings that a report has been produced by the NSW Police alleging that I was in a motor vehicle with another gentleman in an intimate situation the [sic] vicinity close to my home.  The man I was with was a person I had worked with.  I deny any suggestion that I was undertaking prostitution.”

3. The mother in oral evidence said that this man was a man she had worked with and still did work with in a catering job.  She didn’t know his surname.  She thought his first name was ‘[B] and said that on a couple of occasions until I referred to the name in the police record when she said his name was ‘[J].  She denied that either of them had their clothes off or had any intention of engaging in sex.  The mother said that the man had driven her to the railway station and they were kissing when the police arrived.  That evidence is inconsistent with the police’s observation that the mother got into this man’s motor vehicle at the railway station; that they both had their pants down and that they both had made admissions they were in the vehicle for sex. 

4. The inconsistencies in the mother’s story in relation to her knowledge of who this man was; how it was she came to be in his motor vehicle; the state of undress and admissions made to police lead me on balance not to accept the mother’s denial that she was in his motor vehicle with intention of providing this 63 year old man with sex for payment.   

10 February 2007

1. The mother says that on 10 February 2007 she travelled to Newcastle McDonalds at 10.30am for the purposes of collecting the child for contact.  She says that she waited there until 12.30pm before she decided to leave Newcastle leaving the area at about 12.45pm to make her way back to Sydney by train.  The father tested the mother in relation to this version.  The mother was unable to say what time (even approximately) her train left F to go to B station.  The mother was unable to describe any of the buildings around the McDonalds store saying that she got lost and it took her a while to get there.  It is in fact possible the mother got there at a time after the father left but I think it more likely she did not make it at all.

Thursday 22 and Friday 23 February 2007

1. On Friday 23 February 2007 at about 3.32am the police attended outside an address in S.  At that time they observed the mother sitting on the roadway in darkness.  The police approached her and saw she was naked from the waist down.  The only clothing on the mother was a white coloured blouse style shirt which appeared to have semi dried blood on it.  The mother was moved off the road and a towel provided to cover her genitalia.  The police assessed the mother as being seriously affected by alcohol as well as drugs.  The mother at this time was unable to converse with the police, unable to remain standing under her own support, uncoordinated and generally non responsive.  The mother was at the time hallucinating, attempting to pick up sealed tar rocks from the bitumen road.  The mother was placed in the rear of a police vehicle and conveyed to hospital under police guard.  A search of the immediate area located the mother’s shoes, blood stained bar and a pair of khaki style shorts, all spread along the grassed footpath next to the soccer field.  As a precaution the police established a crime scene.  Another police officer identified the mother as a woman he had noticed in a motor vehicle at F shopping centre at approximately 1.30am on 23 February 2007 with a male in a blue singlet.  Later in hospital the mother slowly began to talk, telling police “no I wasn’t raped”.  There was no evident marks, bruises, scratches, wounds or the like to support any sexual assault on the mother.

2. The investigating police formed the view that the mother was working as a prostitute and obtained a client (the man in a blue singlet). The police believed that the two of them had driven to the location where a transaction had possibly occurred.  The mother’s client had left her in the location, leaving her in the condition she had been in when located by police.  The police note that the hospital’s main concern at that time in the early hours of Saturday 23 February 2007 was the seriousness of her condition relating to alcohol and drugs in her system. 

3. The hospital’s records indicate that when the mother presented to the emergency department at the Hospital on 23 February 2007 at 4.15am she was diagnosed with alcohol intoxication.  She admitted to alcohol intake on the previous evening.  She did not admit to the hospital that she had been taking drugs.  Examination did not reveal any obvious evidence of trauma.  The mother would not discuss with hospital staff what had happened the night before.  It was noted that she poorly recollected some events.  She refused to involve herself with the social worker or with any drug and alcohol counselling. 

4. The hospital records disclose that although the mother denied the use of drugs to the hospital, a urine test tested positive for cannabinoid.  In oral evidence the mother admitted that she had been using cannabis as well as alcohol on the Thursday leading up to her admission to hospital on the Friday.

5. The mother in her affidavit says this:-

   “13.On 23 February 2007 I went out to a local pub with some friends.  I was drinking alcohol and I subsequently became very ill.  I suspected that somebody had slipped a drug into one of the drinks I was consuming.  I became disorientated.  I do not recall much after I became disorientated.”

6. The mother’s oral evidence in relation to her memory of this event was confused and inconsistent.  In oral evidence she originally said that she had been at a pub since after dark on the Thursday night.  I asked the mother whether or not she had been to a party (as she had told me when she appeared before me on 6 August 2007 – see transcript of this set out earlier in these Reasons) or to the pub (as asserted in her affidavit of 15 September 2007).  The mother changed her oral evidence to say that she had done both.  She now said had been to a party from about midday and then had gone to the pub after that. 

7. I do not accept the mother’s assertion that somebody spiked her drink.  I find on the balance of probabilities that the mother had started using alcohol and cannabis at about midday on Thursday 22 February 2007 and continued to use those substances until she met a man in a blue singlet at about 1.30am in the car park of F shopping centre.  She was then driven to the street where an incident took place that left her naked from the waist down wearing only a white blouse.  Her previous use of alcohol and cannabis meant that when police picked her up at 3.32am she was unable to stand; she was uncoordinated, unresponsive and was hallucinating. 

Telephone calls in February and March

1. The mother said that on various occasions during February and March she waited for the child to make a telephone call but the child did not call.  The mother implied in evidence that the child would have had the telephone number.  I am unable to say whether the child had his mother’s mobile telephone number. 

7 March 2007

1. The mother agreed that she received a two year suspended sentence on 7 March 2007 for breach of an Apprehended violence order (AVO).  The incident constituting breach was telephoning the paternal grandmother.  Some of the details relating to this breach are contained in the grandmother’s affidavit.  The statement by the grandmother which formed the basis of the charge for which the mother pleaded guilty is annexure A to her affidavit sworn 24 August 2007.  At paragraph 37 the grandmother records that she had been told by police that the mother had pleaded guilty to the breach of the AVO and had been fined and placed on a good behaviour bond and ordered to attend drug and alcohol counselling and anger management.  In oral evidence the mother agreed that she had received a two year suspended sentence on 7 March 2007 for breaching the AVO and had been ordered to drug and alcohol counselling through her probation and parole service.  The mother had also been ordered to an anger management programme.  She saw her probation and parole officer once a week but no counselling or programme had yet commenced. 

6 April 2007

1. The mother was picked up by the police for fare evasion but released by the police when she told them she was at a women’s refuge at P

7 August 2007 at 1.10pm

1. On 7 August 2007 at 1.10pm a police patrol noticed that the mother appeared to be avoiding them.  The police received information from business owners of a shop along the Highway that the mother was “hanging around” for prostitution.  It was reported to police that the mother had been attempting to stop vehicles.  The mother was spoken to. She denied being in the area for prostitution or drugs.  Her claim was that she was “visiting a friend”.  She however would not give the police any details about her friend’s name or address.  The mother was searched.  No object was found.  She was asked to leave the area.

8 August 2007 at 1.29pm

1. At 1.29pm on 8 August 2007 police were patrolling W.  They came across the mother loitering in the vicinity.  The police COPS entry notes that this place is a well known location for drug activities and prostitution.  A search of the mother was carried out which resulted in no drugs being located, however the police located a number of condoms.  When questions about these items the mother stated to police that she used to be a working girl but no longer did this type of work.  The mother was asked to move on by the police.

2. The mother’s response to why she had condoms in her handbag was that she always practised safe sex.  She was unable to explain why when the police searched her the day before she did not have any condoms.

3. Submissions by solicitor for the mother is that the mother is an adult, she can carry on her sexual activities however she likes as long as it does not affect the children.  I was asked to conclude that on the balance of probabilities that the mother is not currently involving herself in street prostitution.  I am not able to do so.

4. I find on balance that the mother has been involving herself in street prostitution; most recently only the month prior to the final hearing.

28 August 2006

1. The mother conceded that the police had pulled her over on 28 August 2006.  She admitted that she was driving a motor vehicle during a period of time when her licence was suspended (that suspension had taken place on 15 August 2006).  The mother was issued with a field court attendance notice.  The mother agreed in oral evidence that this charge had been laid after she had been stopped only four days earlier by police and warned by police that she was not to drive until the suspension had been lifted.  The mother conceded in oral evidence that she had been “silly”.  The mother was placed on a twelve month bond which prohibits her from driving for twelve months as a result of driving whilst her licence was suspended. 

17 September 2007

1. I noticed during the proceedings before me on 17 September 2007 that the mother seemed to be falling asleep whilst behind her solicitor who was at the bar table.  When asked about that in the witness box the mother said that she had been up all night with a toothache.

2. The mother agreed that she had been substantially late for the hearing on 17 September 2007.  She denied however that she had been habitually late for appointments, including court appearances.  That evidence is not consistent with findings made by me in Reasons for Judgement dated 8 March 2007.  There has also been evidence before me that I accept that the mother did not attend or was late attending the Contact Centre in February 2007.  Her explanation for that is she travels by public transport and she asserts that transport is inherently unreliable.  I do not accept that explanation for her chronic lack of punctuality. 

Domestic violence complaint against Mr H

1. Mr H is the father of the mother’s two younger children and was until recently a man with whom the mother was having an intimate relationship. 

2. When asked where the mother’s two young children were during periods of time when the mother was involved in the activities described in the police records (for example 8 January 2007 and 22-23 February 2007), her response was that Mr H was looking after them.

3. The mother said that while she was at the refuge at P at about 3.30am on Friday 29 June 2007 she had received a phone call on her mobile from Mr H.  He wanted to come around and see her. She threatened to call the police.  She then received a text message from him.  She said she looked out of her window and saw a person in the pay phone down the street and believed it to be Mr H.  The police arrived at about 4am, patrolled the area to see if they could locate Mr H. He was contacted.  Mr H stated he was not in the area, he was at home in bed. 

4. The mother says she has not had a relationship with Mr H since this event. 

5. One thing that was in the medical records and wasn’t touched on in oral evidence was the fact that the mother may have had a lost pregnancy in July 2007.

Mother’s allegation of abuse of the child in the father’s household

1. Exhibit B contains a police record of the attendance by the mother with the child at L police station in January 2007. There was no visible injury to the child at the time the child, with his mother, reported to police that he had suffered red and soreness to the neck and face at the hands of his father and grandfather. 

2. The details were that some time about one year before (namely January 2006) the child’s father had hit the child across the face using an open hand.  The child told police that that had resulted in him feeling strong pain and leaving a red mark for the remainder of the day.  The background behind this incident was that the child had taken his father’s cigarettes and put them in the bin because he did not want his father getting lung cancer.  When his father caught the child doing this he hit the child and then said “oi, what are you doing?”  The father then sent the child to his room.  The child stated to the police that for the next week he was only allowed to leave his room for meals and the bathroom. 

3. The child told police the second incident involved the child and his nanna.  They had had an argument.  This argument caused his nanna to go to her room crying.  When the grandmother’s husband (the child’s paternal grandfather) saw this he grabbed the child by the neck and dragged him into his room, which is about one metre away.  Once in the room his grandfather held him by the neck while he yelled at him for a couple of minutes.  The child was then only allowed to leave his room for the next eight days to eat and go to the bathroom.  As a result of the incident the child said he had a sore neck and some slight bruising.  The child also said “my glands were fiery and sore”.  The child told police in January 2007 that he got into arguments by defending his mother on a weekly basis. 

4. It was these facts that led the mother to attempt to retain the child in January.

THE MOTHER’S USE OF DRUGS

1. The mother has never been convicted of any drug related offences. 

2. At the first hearing before me, both the father and the paternal grandmother were firmly of the view that the mother used drugs.

3. In paragraphs 217 to 224 of my previous Reasons, I discuss the question as to whether or not the mother uses drugs.  As I discuss in those paragraphs, Dr W in 2002 concluded that probably the mother’s account of her drug use was unreliable.  The mother described to Dr W in 2002 her procuring methadone.  Dr W commented that recreational use of methadone is not characteristic of a pattern of light use of drugs.  It is a feature of people who have close ties to the community of intravenous drug users and people on narcotic rehabilitation programs.

1. On 4 September 2002 I record in my Judgment that the COPS record discloses that the mother was interviewed by police when she was seen in the company of a known supplier of prohibited drugs.  She had a fifty dollar note in her right pant’s pocket (as opposed to her handbag) and the police on inspecting her arm saw old track marks.  At the time she had her two younger children with her in a pram.

2. I conclude from what happened on 16 December 2006 that on balance the mother was affected by drugs on that day.

3. The mother has now admitted to me that she used cannabis in early September 2007. She also agreed she used cannabis on the night of 22/23 February 2007. Given that I required the mother to give evidence about those matters, I shall make an order that she receive a certificate under Section 128 Evidence Act.

4. In my previous Reasons I concluded that there was no evidence as at June 2006 upon which I could conclude that the mother was then currently taking drugs.  That evidence now exists. 

EMAILS BY THE MOTHER

1. The father asserted that the emails sent by the mother to the child were a form of “major psychological child abuse”.

2. Some of what the mother has written in emails on Saturday 11 August 2007 is not appropriate.  One email starts:

   “i love u and we will b to gether soon i have a good feeling that our day are going to be back the way thay should b im sorry that this has happened and i no u no that i never wanted to let u go and we have been let down in the worst way possible”

3. Another email slightly earlier on the same day says:-

   “....your getn to B such big boy now there will be some big chahges and we will b together again, im sorry 4 all the time together we missed and i will mwke it up 2 u:

4. Another email on the same day (annexure D to the father’s affidavit) asks the child:

   “....is urn nan on to u don’t get into trouble and if u do i want to know what happens to u ....”

5. A number of the emails have been answered by the child with the words “Hi mum I love you”. 

6. This type of communication by the mother to the child has the effect of destabilising the father’s parenting of the child in the father’s household.

7. I intend to restrain the mother from saying anything to the child that would indicate to him that he will soon be coming to live with his mother.

PARAMOUNT CONSIDERATION

1. In deciding what parenting orders to make for the child, I must regard his best interests as my paramount consideration (s.60CA Family Law Act (“FLA”)).

PRIMARY CONSIDERATIONS

1. In determining those best interests I must consider s.60CC(2) FLA:-

   83.1.the benefit to the child of having a meaningful relationship with both of his parents;

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

2. In addition I must consider those matters set out in s.60CC(3) and (4) FLA and I also have in mind the objects and their underlying principles of Part VIII FLA.

3. In assessing the benefit to the child of having a meaningful relationship with both his parents, it was clear in June 2006 that the child loved both his parents.  It is clear from the responses to the emails referred to elsewhere in this judgment that the child still loves his mother.  The child would benefit from having a meaningful relationship with both his parents.

4. There is also a need, however, in this case to protect the child from physical or psychological harm from being subjected to abuse or neglect.

5. The mother points to what the child told her about what happened in the father’s household at the beginning of 2006.  As I have commented elsewhere I do not put a great deal of weight on what the child told the police in his mother’s presence in January 2007 about what had happened a year earlier.

6. I do however place significant weight on my findings in relation to the conduct of the mother during late 2006 and through 2007.  In addition to the mother’s conduct in relation to prostitution, drugs and risky behaviour there is also the communication that she has with the child which promises him that they will once again be reunited.  The mother shows no insight as to what affect that may have on the child’s state of mind.

7. In my view on the facts before me at this hearing the second primary consideration is weightier than the first.

ADDITIONAL CONSIDERATIONS

Expressed views and their weight

1. The child is now 12 years of age.  As recently as August 2007, in response to emails from his mother saying that they could be together again, the child’s response is to tell his mother that he loved her.  It is of some significance that he did not respond to those emails by saying to his mother that he wanted to come and live with her. 

2. There is nothing to indicate that what the child told Dr W as recorded in Dr W’s 2004 report (see paragraph 156 of my Judgment of March 2007) has changed.  That is, the child would like to stay where he was but see his mother when possible. 

Relationships

1. There is nothing in the evidence before me to change my previous finding that the child continues to have a close relationship with his father and maternal grandmother and has “a genuine overall wish to maintain contact with his mother and has been quite distressed by the lack of contact”.

2. If anything, the relationship between the parents and the relationship between the mother and the paternal grandmother has become more poisonous.  The mother has been charged and convicted at the instigation of the grandmother with breaching a domestic violence order prohibiting her from communicating with the grandmother.

3. The father was fortified by what he discovered in the police and hospital records in relation to the mother’s behaviour and his attitude seems to have hardened even further against her if that is possible.  On the last occasion I found that the mother had improved her performance over the years.  In my reasons for judgment I indicated that I believed that the high conflict between the adults in this case will continue to create significant problems for the child in the future.  The conflict between the adults is as high as it ever was. 

4. The child has two siblings named J aged approximately 9 and S aged approximately 8.  The orders that I make will by their very nature curtail the amount of time that J and S can spend with the child. 

Willingness to encourage and attitude to relationship between the child and the other parent; attitude to the responsibilities of parenthood

1. Section 60CC(4A) FLA requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred.

Mother to father

1. As I have said elsewhere, the mother has in emails attempted to destabilise the arrangement that I had put in place as a result of the orders made on 27 June 2006.  This shows that the mother had an unwillingness and an inability to facilitate and encourage the development of those new arrangements.

Father to mother

1. The father facilitated the arrangements under the orders for about six months until the mother found an excuse not to return the child at the end of a period of time that the child was with her.  At paragraph 233 of my Reasons for Judgment I had previously expressed the view that it was very important for the mother not to find any excuse not to return the child at the end of the child’s time with his mother.

2. The father’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and his mother is compromised by the father’s attitude towards the mother and his attitude that the mother should be excluded from the child’s life in order to introduce some stability for the child.

Obligation to pay maintenance

1. The mother currently lives in a refuge.  There is no real indication that she has the financial ability to make regular payments to the father by way of child support for the child.  Whilst I conclude on balance she is earning some money from prostitution there is no indication that that is a substantial regular income stream. 

Effect of Change

1. Currently the orders are not being complied with.  It is my view that a new set of orders that take into account the mother’s behaviour since the last orders were made might provide a set of orders that are more likely to be complied with by both parties

Practical difficulty and expense of being with and in touch with other parent

1. The practical difficulty and expense of the child spending time with and communicating with his mother will substantially affect his right to maintain a personal relationship and direct contact his mother.  As I have previously said, the logistics of the child seeing his mother are a difficulty.  The father lives in the central coast area of NSW.  The mother lives in the west of Sydney.  Contact involves significant travel.  Contact changeovers have been difficult in the past.  In the past they have been supervised and facilitated by the Contact Centre in Newcastle. 

2. I decided in June 2006 that for a six month period I would retain the facilitated contact changeover and that this did not require supervision.  This arrangement now needs to be rethought.  

The capacity of parents and others to provide for the needs of the child (including emotional and intellectual needs)

1. This is not an application for change of primary care giver.  It is an application for eliminating the child’s time with his mother. 

2. The child lived with his mother prior to December 2002.  Dr W indicated in his report that the mother was disorganised, somewhat unresponsive, somewhat unemphatic and that all three children’s behaviour were consistent with this being her habitual pattern of parenting.  Paragraphs 183 through to 189 set out in a very detailed way with quite a number of examples the inability the mother has in getting anywhere on time. 

3. I commented on the long term effects of the current conflict on the child at paragraph 192 of my previous Reasons.  I expressed the hope in that paragraph that both families recognise the need that the child has to be nurtured by both families.  Unfortunately that hope has faded since the original orders were made by me.

4. It is fairly clear to me that the child’s father has not accepted what I said in paragraph 192.  I said that I accepted Dr W’s comment that unless the father’s family were able to find some worth in the mother and to nurture the child’s relationship with the mother’s family then the rebound effects upon the father’s family may be very unhappy for both the child and the father’s family.  The consequence in his adolescence may be that if the father’s family were unable to foster contact with the mother then the child might eventually vote with his feet.

5. There is no doubt that the child and his mother have a powerful love for one another and that the mother has a capacity to meet some of the child’s needs when she sees him. 

6. On the last occasion I had no reservations about the parenting the child will receive in this father’s household.  Despite what the child told the police in January 2007 that remains the position. 

7. I did in my previous Reasons express reservations about the mother’s parenting capacity.  I assessed it had improved.  I review that assessment now based on the information referred to otherwise in these Reasons.  I now have serious reservations about the mother’s parenting capacity.

Characteristics of the child

1. As previously noted, Dr W described the child as a “gentle and sensitive boy”.  When Dr W first saw the child he thought he had the characteristics of an evolving gender dysphoria which was probably in his view quite entrenched.

2. The child still sees Dr M.  I don’t have the benefit of an updated report from Dr M.  The last report from Dr M was that any dysfunctioning in the child’s gender identification, has been managed well by the father and paternal grandmother.   

Family violence

1. I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount: s.60CG FLA.

2. Despite what the child told the police in January 2007 I do not believe there is any unacceptable risk of family violence in the father’s household. 

3. There is a need to protect the child from physical or psychological harm whilst he is spending time with his mother. 

Any family violence order

1. An apprehended violence order was made in the Local Court on 24 April 2004 against the mother for the protection of the paternal grandmother, her husband and the father.  The order was made for a five year period and is due to expire on 24 April 2009.

2. I referred earlier to the mother’s conviction for breach of domestic violence orders. 

3. I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount: s.60CG.

4. The order that I propose does not, so far as I am aware, interfere with any domestic violence order that is currently in place. 

The order that would be least likely to lead to the institution of further proceedings

1. Given the history of this litigation; the intensity of feelings between both sides; the child’s love for both his parents and the child’s age, no order that I will make is more likely than any other to minimise the risk of the institution of further proceedings.

CONCLUSION

1. The father wants the child to be able to settle into high school next year and does not want interference from the mother in the meantime.  Ceasing all contact between the child and his mother is not appropriate. 

2. The mother submits that at no time has the mother placed the child at risk of harm and that her capacity to care for the child has not changed since the orders were made in June 2006.

3. The mother in oral evidence said that in her view she was innocent until she was proven guilty.  That is not the test.  The test is whether the mother’s behaviour creates an unacceptable risk for the child if he is left unsupervised in her care.  In my view it does. 

4. The mother’s behaviour as referred to elsewhere in these Reasons mean that I think supervision is again appropriate.  The child has to be protected at this point as much as possible from the mother’s chaotic lifestyle and also from the mother indicating to the child that one day she will again be his primary care giver.

5. The solicitor for the mother submitted that even if I found the mother’s activities to be as asserted, none of them took place in the presence of the mother’s two younger children and that consequently I could conclude that there was no unacceptable risk of the child being unsupervised in his mother’s care.  I do not accept that submission.

PROPOSED ORDERS

1. I am still of the view that a regime of the child seeing his mother once a month is in the child’s best interest but I conclude more extended periods are not.  I am also of the view that time should be supervised.

2. The mother says in her evidence that the Contact Centre is not available.  In her affidavit sworn 3 September 2007 the mother gives evidence that her solicitors on 7 August 2007 had contacted the Contact Centre with a view of arranging contact and were informed by a worker that due to recent flooding in the area the contact centre was closed.  Alternate centres were given at P and B in Sydney’s suburbs.  The affidavit goes on to say that they contacted B and facilitation was possible.  The mother’s affidavit sworn 15 September 2007 says that the Contact Centre reopened on 24 August 2007 after being destroyed by recent floods in the Hunter Valley and that the mother’s understanding was that they are able to assist however there is a significant waiting time and they anticipate that the wait will be beyond Christmas.

3. The mother says that the Children’s Contact Centre, B (the “[B] Children’s Contact”) is available to assist after the father and she attends an intake assessment and that there is no waiting period for this centre.  A copy of a brochure for the service is attached to the mother’s most recent affidavit.

4. The father did not respond to this evidence with any oral evidence but told me from the bar table that he did not think it was fair on the child or on himself and his welfare to have to travel to B.  He said it was too far for him, given the distance he would have to travel.  He said from the bar table that there were four couples on the waiting list at the moment at the first Contact Centre.  He believed that even supervised contact should not take place until the mother undertook drug and alcohol counselling and regular drug tests. 

5. In his affidavit filed 13 September 2005 the father at paragraph 8 indicates that he is familiar with the policies and procedures that are necessary before supervised contact could take place at the B Contact Centre.  It is clear that the father has been in communication with the B Contact Centre.

6. The mother has proven herself incapable of travelling a long distance and getting there on time.

7. I recognise the imposition placed on the father and the child (and possibly the paternal grandmother) by requiring them to come to the B centre but I think that is appropriate for four reasons:-

   132.1.It is in the child’s best interest that he continue to have some face to face time with his mother;

   132.2.The father has a far greater financial capacity to fund the travelling given that he is in full time employment;

   132.3.He and the paternal grandmother are more reliable in the delivery and collection of the child than is the mother;

   132.4.The mother is more likely to be able to get to B than she is to get to the Contact Centre on the central coast.

8. I have got no evidence as to how long B Contact Centre will continue to provide a supervised facility for the same child.  I hope however they will do it on twelve occasions over one year.  The child will then be settled into his first year of high school.  It may be that after one year the matter can be revisited.  The child will then be 13 years of age.

I certify that the preceding One hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  26.9.07