EDELSTON & EDELSTON

[2017] FamCA 481

FAMILY COURT OF AUSTRALIA

EDELSTON & EDELSTON [2017] FamCA 481

FAMILY LAW – CHILDREN – Interim Hearing – Best Interests – Where there have been proceedings in the children’s court – Where the children have been previously removed from the parents – Where the children currently live with the father and spend time with the mother – Where both parents have historical substance abuse and mental health concerns – Where the father alleges the mother has ongoing mental health and substance abuse issues – Where the mother claims she is abstinent from drugs and alcohol – Where there is no evidence contradicting the mother’s claims of abstinence – Where Court ordered drug testing of the mother reveals no matters of concern – Where the father alleges the mother’s new partner is violent – Where there is only limited and remote evidence to support allegations of domestic violence – Where neither parent poses an unacceptable risk of harm to the children – Where the children have a meaningful relationship with both parents – Orders made for the father to have sole parental responsibility – Orders made for the children to live with the father – Orders made for the children to spend gradually increasing unsupervised time with the mother – Orders for both parents to undertake CDT testing – Orders for the mother to undertake urinalysis.  

Family Law Act 1975 (Cth) ss 60CA, 60CC

Deiter v Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Edelston

RESPONDENT: Mr Edelston

INDEPENDENT CHILDREN’S LAWYER: JPM Legal

FILE NUMBER: SYC 5789 of 2015

DATE DELIVERED: 7 July 0217

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Neville

SOLICITOR FOR THE APPLICANT: Mark Whelan

COUNSEL FOR THE RESPONDENT: Ms Breeze

SOLICITOR FOR THE RESPONDENT: Self Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JPM Legal

Orders

1. All previous orders made in this matter be discharged.

PENDING FURTHER ORDER

1. The father shall have sole parental responsibility for the children B born … 2009 and C born … 2011 (“the children”).

2. The children shall live with the father.

3. For eight weeks from the date of these orders, the children shall spend time with the mother each Sunday from 9am until 5pm or otherwise as agreed between the parties and for one evening each week by agreement and failing agreement on Wednesday from 3.30pm or after school until 7pm.

4. After the expiration of Order 4 above and for a period of eight weeks, the children shall spend time with the mother each alternate weekend from 10am Saturday until 5pm on Sunday or otherwise as agreed between the parties and for one evening each week by agreement and failing agreement on Wednesday from 3.30pm or after school until 7pm.

5. After the expiration of Order 5 above and for a period of eight weeks, the children shall spend time with the mother each alternate weekend from 3.30pm or after school on Friday until 5pm on Sunday or otherwise as agreed between the parties and for one evening each week by agreement and failing agreement on Wednesday from 3.30pm or after school until 7pm.

6. After the expiration of Order 6 above and for a period of eight weeks, the children shall spend time with the mother each alternate weekend from 3.30pm or after school on Friday until 9am or before school on Monday or otherwise as agreed between the parties and for one evening each week by agreement and failing agreement on Wednesday from 3.30pm or after school until 7pm.

7. After the expiration of Order 7 above and continuing, the children shall spend time with the mother each alternate weekend from 3:30pm or after school on Friday until 9am or before school on Monday or otherwise as agreed between the parties and for one night each week by agreement and failing agreement on Wednesday from 3.30pm after school until 9am or before school on Thursday.

8. From 2018 in addition to the mother’s time with the children in order (1) to (8) which will occur during the school term the children shall spend time with the mother for one half of all school holiday periods alternating between the first half in odd numbered years and the second half in even numbered years.

9. The children will spend further time with the mother during special occasions as follows:

   (a)During Christmas 2017 and each alternate year thereafter from 10am Christmas Eve until 1pm Christmas Day.

   (b)During Christmas 2018 and each alternate year thereafter 1pm Christmas Day until 5pm Boxing Day.

   (c)During Easter 2019 and each alternate year thereafter 10am Easter Saturday until 1pm Easter Sunday.

   (d)During Easter 2018 and each alternate year thereafter 1pm Easter Sunday until 5pm Easter Monday.

   (e)On Mother’s Day from 5pm the night before to 5pm on Mother’s Day.

10. The children will spend time with the father from 5pm the night before Father’s Day until 5pm on Father’s Day each year regardless of whether they were due to spend time with the mother that weekend.

11. Changeover occur either at school on school days or otherwise at the Coles Car Park at Suburb D.

12. For a period of three months from the date of these orders, the mother is to undergo urinalysis upon 24 hours’ notice by the Independent Children’s Lawyer on no more than three occasions per week with such testing to be at the mother’s expense.

13. The mother do all things necessary to immediately provide to the other party or his nominated legal representative and the Independent Children’s Lawyer a copy of any drug screening report.

14. The mother and the father are to undertake a Carbohydrate–Deficient Transferrin (CDT) Test in the first week of each month for three months from the date of this order and provide to the Independent Children’s Lawyer the results within 7 days of them being made available.

15. Should any of the urinalysis testing return positive then the mother’s time with the children will continue to be supervised once per week for not less than two hours until she can provide two consecutive clear urinalysis results.

16. Should the father’s test return positive then the Independent Children’s Lawyer has liberty to relist the matter upon 48 hours’ notice to the Court.

17. Neither parent shall denigrate the other parent in the hearing or presence of the children nor allow any other person to do so.

18. Both parents shall notify one another as soon as practicable in the event of the children suffering any medical or other emergency during their time with the other parent.

19. Within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school, the father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the mother copies of all of each child’s school reports and any written material pertaining to each child’s academic and extra-curricular activities.

20. Both the mother and the father are able to attend any and all school and extra-curricular functions for the children.

21. Both parties are to enrol in and complete the Keeping Kids in Mind parenting course and provide a copy of the completion certificate to the Independent Children’s Lawyer within six months from the date of these orders.

22. The children shall be at liberty to speak with the mother by telephone at any time should they wish to do so and that they shall also have FaceTime with their mother each Monday, Wednesday, and Friday between 5.30pm and 6.30pm on days they are not spending time with her.

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 Edelston & Edelston 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 5789  of 2015

Ms Edelston

Applicant

And

Mr Edelston

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of B who is seven and C who is six (“the children”) have had some difficulties in caring for the children throughout their lives. In particular on two occasions in 2014 the children were removed from the parents’ care by the Department of Family and Community Services (“the Department”) due to the parents’ misuse of illicit drugs and alcohol.

2. The parents separated in November 2014 at the time that the children were placed in the care of the Department for a second time.

3. In proceedings in the Children’s Court orders were made in December 2015 in relation to the future care of the children. Pursuant to those orders the Minister of the Department had parental responsibility for the children for six months.  Thereafter the father held parental responsibility for the children to the exclusion of the mother under the supervision of the Department and on the condition that he remain in the home of his mother (“the paternal grandmother”) until December 2016. From 17 June 2017 the father has held sole parental responsibility for the children and the supervision of the Department has ceased.

4. The mother commenced proceedings in this court with the consent of the Department and seeks orders that the children live with her, that she and the father hold equal shared parental responsibility for the children and that the father spend substantial and significant defined time with them.  Currently the mother spends time with the children supervised by a professional supervision agency for two hours each week.

5. In these interim proceedings the mother seeks orders significantly increasing her time with the children. The independent children’s lawyer (“ICL”) put forward a proposal at the interim hearing for the mother’s time with the children to be gradually and substantially increased.  Under the ICL’s proposal the mother’s time will begin with eight hours each Sunday and for a few hours after school on a weekday increasing over time until it occurs each alternate weekend from after school Friday until before school on Monday and one overnight on a week day and on special days. From 2018 the ICL proposes that the mother’s time also include half of all school holidays.  Under the ICL’s proposal the mother’s time will no longer be supervised.  The mother consents to orders being made in these terms.

6. It is the father’s contention that the mother and others in her household pose an unacceptable risk of harm to the children. The father agrees to some increase in the mother’s time with the children on certain strict conditions commencing in six month’s time and increasing over a much more extended period ultimately leading to overnight time 18 months in the future.

7. The question for me to determine is whether it is in the children’s best interests for their time with their mother to increase and become unsupervised immediately or to continue on the limited and supervised basis for six months and increase and become unsupervised as proposed by the father.

Background

1. The mother and the father who are both 37 met and commenced a relationship in 2003. They married in 2006.

2. The parties’ first son was born in 2009 and their second son was born in 2011.

3. Both parties used illicit substances including cocaine throughout their relationship except in the mother’s case when she was pregnant.  The mother maintains that she has not used any illicit substance since March 2014.  The mother also has had significant difficulties with alcohol misuse which has resulted in her being admitted to hospital on a number of occasions for detoxification. 

4. In March 2014 the children were removed from the care of the parents on the basis as I understand it that both parents’ use of alcohol and illicit substances was so problematic that they were unable to appropriately and safely care for their children. The children were shortly after their resumption into care placed with the paternal grandmother.

5. After some months the children were returned to their parents in July 2014.

6. In November 2014 there was an incident between the parties.  The father was charged with assault and an Apprehended Violence Order (ADVO) was made for the protection of the mother against the father.  The following day the mother lost consciousness after misusing a prescription drug while caring for her children.  The parties separated at this time and the children were removed from them a second time and once again placed with the paternal grandmother. 

7. In February 2015 the existing orders under which the children had been returned to their parents were rescinded due as I understand it to both parents having breached their undertakings to the Children’s Court. 

8. In May 2015 an assessment of the Children’s Court Clinic did not support the children being restored to the care of either parent.

9. From November 2015 the mother began a relationship with her current partner Mr E (“the mother’s partner”).  From this time the mother also maintains she has been abstinent from alcohol.

10. On 18 December 2015 orders were made in the Children’s Court (“the Children’s Court Orders”) allocating all aspects of parental responsibility for the children to the Minister for Family and Community Services (“the Minister”) for six months and at the expiration of that time all aspects of parental responsibility for the children were allocated to the father to the exclusion of the mother until the children reached the age of 18. The orders also provided that the children were placed under the supervision of the Secretary of the Department for 12 months.  The purpose of the supervision was to monitor and support the children in the care of their father and in their time with their mother and also to monitor undertakings given to the Court by the parents and paternal grandmother. 

11. Under the Children’s Court orders the mother’s time with the children was conditional upon her abstaining from using alcohol or an illicit drug for 24 hours prior to and during that time and maintaining compliance with any treatment regime for any prescription drug.  During the six months in which the children were under the parental responsibility of the Minister the mother’s time with the children was to be supervised. 

12. Those orders also provided that if the mother has demonstrated a period of six months consecutive abstinence and compliance with the orders with respect to alcohol and drug use her time with the children was to increase and after a further six month period include overnight time and ultimately occur each alternate weekend and for a few hours after school mid-week and for block periods of time in the school holidays. 

13. Undertakings given by the mother to the Children’s Court included that she not consume any alcohol or illicit substances during contact or within the 24 hour period leading up to contact, that she have an interlock device fitted to the vehicle in which she drives to and from contact with the children for three years, that she attend upon drug and alcohol testing as randomly requested by the paternal grandmother, and that she continue to attend upon mental health practitioners and follow treatment or medication regime recommended by them for as long as required. 

14. The father gave undertakings including that until the children attain the age of 18 he not consume any illicit substances, that he not consume excessive alcohol in the presence of the children and that he attend upon urine testing or other drug and alcohol testing as randomly directed by the Secretary’s delegate during the period of the Secretary’s supervision. 

15. The Children’s Court orders were registered with the Family Court.

16. In January 2017 with the consent of the Minister, the mother commenced proceedings in this court seeking to suspend the current orders.  In lieu the mother sought orders that she equally share parental responsibility for the children with the father and that the children immediately spend unsupervised time with her including overnight time increasing to an equal shared arrangement after a matter of weeks.

17. It is the mother’s case that she has complied with all of the matters required of her under the Children’s Court orders but her time with the children has not increased as she had expected.  It is her position that officers of the Department have no concerns about her use of illicit drugs or alcohol or in relation to her health and that these matters have been raised by the father and paternal grandmother alone.  She maintains that she has been abstinent from alcohol and complied with the orders but the father has not allowed her time with the children to progress.  It is her contention that she does not pose any risk of harm to the children that requires her time with them to be limited or supervised. 

18. It is the father’s case that the mother has failed to demonstrate that she does not pose an unacceptable risk of harm to the children if she were to have unsupervised time with them.  He contends that the mother has not demonstrated abstinence from alcohol and other illicit drugs or demonstrated compliance with treating medical practitioners in relation to her mental health as had been envisaged in the Children’s Court orders and undertakings given by the mother in those proceedings.  He contends that his proposed interim orders which provide for the mother to demonstrate that she has addressed the issues of concern in the proceedings in the Children’s Court and which provide for the mother to spend time with the children in a graduating regime is in the best interests of the children. 

The Contested facts

1. Central to the mother’s case is her contention that she has been abstinent from alcohol since November 2015 and has not used illicit substances since March 2014.  The mother also contends that she no longer has any mental health concerns which require ongoing treatment.  The father disputes these contentions and maintains that there is an unacceptable risk that the mother is still misusing alcohol and illicit drugs and has an untreated mental health condition. 

2. Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may have some regard to the matters in dispute.  In SS & AH[1], their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

3. In Deiter v Deiter[2] the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Court said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   [2] [2011] FamCAFC 82

Mother’s drug and alcohol use

1. Having regard to the second element comprising risk assessment, that is a consideration of the severity of the impact caused by the harmful events, I am of the view that any illicit drug use or alcohol misuse by the mother given the history of this matter could be of grave concern.

2. The mother concedes that she did have a significant difficulty with alcohol misuse that impacted upon her capacity to care for her children which lead to the children being taken into care.  She says that she was first abstinent from March 2014 (when the children were first removed) but at an unspecified time in 2015 she relapsed into using alcohol “for a brief period” but has remained abstinent since November 2015. 

3. In relation to the second element in risk assessment, which requires prediction of the likelihood of the occurrence of harmful events (that is the mother returning to illicit drug use or alcohol misuse) it is the mother’s position that she has demonstrated her abstinence from drug use in March 2014 and alcohol use in November 2015.  In this regard the mother relies upon records of various treating health professionals and the results of monitoring of various types to demonstrate her abstinence. 

4. The mother annexes to her affidavit a letter from her treating psychiatrist from October 2016 which refers to the mother’s alcohol and cocaine dependence as being “in remission”.  The psychiatrist at that stage recommended that the mother recommence Antabuse (which causes an aversion physical reaction with alcohol) “during the upcoming court period as an extra precaution”.  The mother deposes to cease using Antabuse in January 2017. 

5. The mother says that even though she is not required to remain abstinent from alcohol and illicit substances generally under the Children’s Court Orders, she has done so.  Since June 2016 she has used an In-home device which I understand is a breathalyser device to provide evidence of her abstinence.  Since commencing the use of this device she has undergone over 1000 tests, testing herself three to four times a day and only three have recorded a positive result which she explains as a result of mouthwash on one occasion and a false reading on the other.

6. Despite the undertakings given in the Children’s Court as required the mother has not fitted an interlock device to the car she uses to drive to and from time with the children as she does not own that car.  The mother says she has never been charged with a drink driving offence and there is no evidence to suggest the contrary.

7. The mother has engaged in drug and alcohol counselling for a number of years.  A letter from a clinical psychologist attached to the mother’s affidavit indicates that the mother first presented to drug and alcohol services at the request of the Department but that from September 2014 she presented again voluntarily and attended approximately 100 counselling and medical appointments at the drug and alcohol service since that date.  The letter is in extremely positive terms and refers to the mother’s acceptance of and engagement at a high level in various interventions.

8. Although the mother also gave an undertaking pursuant to the Children’s Court orders to attend any testing for drug and alcohol use as requested by the paternal grandmother she deposes that the paternal grandmother has not made any such request since 1 April 2016, but that the mother has herself arranged and paid for a number of chain of custody tests herself to prove her abstinence.  These include hair follicle testing in April 2016, July 2016, October 2016 and January 2017 each of which involved testing of 1.5 inches (3.81 cm) of hair and each of which was negative for all substances other than an occasion in July 2016 when codeine was detected as present.  The mother deposes to this relating to an occasion on 28 April 2016 when she was prescribed Endone and Panadeine Forte (supported by a letter from her medical practitioner to this effect) for a fracture to her ribs.

9. In relation to alcohol use in particular, the mother also underwent a carbohydrate deficient transferrin (CDT) test in December 2016 and January 2017 the results of which indicate that she has not engaged in excessive alcohol intake.  The mother has also participated in chain of custody urine testing including as directed by the ICL in December 2016, January 2017, May 2017 and June 2017 each of which do not raise any matters of concern. 

10. Essentially the father contends that the various forms of monitoring upon which the mother relies are not reliable.  In particular he challenges the reliability of the In–home device, notes that on two occasions during the period that the mother claims abstinence the results were not valid and expresses concern about the mother’s explanation for the positive breath tests.

11. I am unable in the limited circumstances of an interim hearing to make any positive findings in relation to the reliability of the various forms of monitoring except to note that each of them other than one urine test ordered by the ICL was undertaken by the mother at the time of her choosing.  However, I accept the submission made on behalf of the mother that there has been such a high level of monitoring by various means during that time that it may be expected that if the mother had relapsed into drinking or illicit drug use that such use would have come to light. 

12. There is no other positive evidence that the mother has engaged in alcohol or illicit substance misuse during the period in which she contends she has been abstinent. 

13. A matter that the father contends gives rise to an inference that the mother has been purchasing alcohol is banking records which indicate spending at various liquor outlets. 

14. The mother concedes that banking records relating to her purchases indicate that she has regularly purchased items from bottle shops from which it may be inferred that she is purchasing alcohol.  The mother says she has purchased bottles of alcohol to give as gifts, has on occasions paid for her groceries at a supermarket chain associated with a bottle shop at the bottle shop counter and also purchases cigarettes from bottle shops.  She is adamant that she has not purchased alcohol for her own use and has not used it since November 2015. 

15. In my view while it is unwise of the mother to have made any purchases from bottle shops as it does give rise to an inference that she is purchasing alcohol, this still does not amount to positive evidence that she is consuming alcohol. 

16. When the results of the extensive monitoring, letters from her treating practitioners and the lack of any positive evidence that she has been misusing alcohol or using illicit substances is considered together with the evidence of her general functioning including her full time employment, I am not of the view that there is an unacceptable risk that the mother has returned to drug or alcohol misuse.

Mental health

1. It appears to be common ground that the parties have experienced mental health difficulties including both parents having been admitted to mental health facilities from time to time, which played a part in the removal of the children from their care. However, there is virtually no evidence in relation to this issue. 

2. The mother contends that she previously suffered from depression and anxiety as a result of her relationship with the father and her drug and alcohol use but maintains that she is now psychologically healthy.  The mother attaches to her affidavit a psychological assessment including a parenting capacity assessment by a psychologist dated 23 September 2016.  The author of that report describes herself as a psychologist and forensic registrar and has tertiary qualifications including a Masters degree in forensic psychology.  The psychologist has experience “within a parenting program with mothers who have been diagnosed with major mental health illnesses” and in other positions.  The report is based upon information given by the mother and matters raised in the Children’s Court proceedings and various documents provided by the mother’s legal practitioners and the administration of a range of assessment tests.  The report is generally in positive terms and supports the mother in her intention at that time to submit an application to the Children’s Court seeking to revisit the orders in that jurisdiction. 

3. The father’s position that the mother continues to suffer from some mental disorder which impairs her parenting capacity is based on historical material. In particular he relies on the mother’s presentation on the second occasion the children were removed from the parent’s care in November 2014 and hospital admissions prior to the Department removing the children from the mother’s care. This material in my view is not relevant to contentions about the mother’s current mental condition and need for treatment.  I also do not attach any weight to other matters relied upon by the father including his interpretation of the opinions expressed by the mother’s psychologist and history as given to her in a report dated 30 January 2015 and concerns raised by case workers from the Department in January 2015.

4. Although the mother’s evidence is untested, the father does not put forth any evidence to suggest the mother is currently impaired due to any mental health condition. The orders he proposes which require the mother to engage with a treating psychiatrist as a precondition to any increase in the mother’s time with the children is in my view not supported by the evidence.

Family violence and ADVO’s

1. Each of the parties makes reference to allegations of family violence said to have been perpetrated by the other party.  There has also been an ADVO made against each party for the protection of the other.  Each party has also been charged with assault (in the case of the father) and contravening the ADVO (in the case of the mother) and there is a complicated history in relation to convictions and appeals for both parties.  However, allegations arising in relation to family violence said to have been perpetrated by the parties did not feature in the interim proceedings.  

2. The father did raise as an issue in the proceedings his concern about a risk that the mother’s partner may be violent towards her to which the children may be exposed in the mother’s household. 

3. The mother and her partner deny that he has ever been violent towards the mother or any other person.  The mother’s partner does not have a criminal history.  The father relies upon a third hand hearsay reference that the mother’s partner was violent towards her in police records to found his concern in this regard.  This evidence is remote and untested and in any event the father does not propose any order to mitigate this alleged risk. In these circumstances I am not satisfied that the mother’s partner poses a risk in these interim proceedings. 

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[3].

   [3] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

4. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.  It is likely that the interim parenting arrangement under consideration will be in place for many months.  At this stage the parents have participated in the Child Responsive Program but a Family Report or Expert Report is yet to be prepared. 

5. The proposed order of the ICL to which the mother now agrees provides for a gradual increase in the mother’s time with the children in eight week tranches, so that after 40 weeks the mother will be spending substantial and significant time with the children during the school term and from 2018 will spend half of all school holidays with them.  The ICL’s proposed orders also include various safeguards such as the mother participating in urinalysis upon 24hrs notice by the ICL up to three occasions per week for three months and both parents undertaking a CDT test for three months.  In my view, if I am satisfied that the children will benefit from having a meaningful relationship with both parents and are not exposed to unacceptable risk this suite of orders will not involve significant disadvantages for the children so long as they are in place. 

6. The father’s proposed orders would see the mother’s time with the children remaining limited and supervised for at least a further six months and then marginally increase and continue to be supervised for a further six months. He does not propose that her time increase substantially and become unsupervised for at least a further six month period and even then not include overnight time.  Under the father’s proposal, overnight time with the mother is not to be introduced until at least 18 months after the date of these orders.  In light of the age of the children and the likely duration of the interim orders, I am of the view that there would be considerable disadvantages to the children under the father’s proposed regime if it is found to be to their benefit to have a meaningful relationship with both parents and neither poses an unacceptable risk of harm. 

The primary considerations:

1. The primary considerations in determining the best interests of the child are contained in subsection s60CC (2).  They are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the consideration set out in subsection (2)(b).

3. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[4] 

   [4] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. As the father’s proposal includes the children ultimately spending significant time in their mother’s care, albeit well into the future, he must be taken as accepting that the children will receive a benefit from having a meaningful relationship with their mother.

5. Under the father’s proposal the children’s time with their mother would not increase except to a very limited extent or become unsupervised for at least another 12 months.  He contends that currently the mother poses an unacceptable risk of harm to the children.  It is his position that as the court is required to give greater weight to this latter consideration than to the children receiving the benefit of a meaningful relationship with both parents, it is in the children’s best interests that the orders are made as he proposes with the significant safeguards entailed in those orders. 

6. Although it is not entirely clear, I understand that the father contends that the children may be subjected to neglect in the mother’s care if orders are made as proposed by the ICL in light of the past history of neglect by the mother when she misused alcohol and illicit drugs and failed to receive appropriate treatment with respect to her mental health.  The father also contends that the children may be psychologically harmed from being exposed to family violence perpetrated by the mother’s partner against her in the mother’s household.

7. For the reasons given, I am not satisfied that there is an unacceptable risk that the children may be physically or psychologically harmed as a result of neglect due to the mother’s alcohol misuse, illicit drug use and failure to address her mental health difficulties. 

8. For the reasons given when considering the issue of the mother’s partner engaging in family violence to which the children may be exposed, I am not of the view that there is an unacceptable risk to the children in that regard. 

9. Section 60CC(3) sets out additional considerations, a number of which are not relevant in these circumstances.  I will touch upon those which are relevant in this interim application.

Any views expressed by the children

1. The views of the children were given to a Family Consultant who interviewed them as part of the Child Responsive Program and reported in a Memorandum to the court. The older child did not express any fears regarding either parent and said he likes seeing his mother and would like to go to her house.  The child expressed that he would like to see his mother “maybe for a whole day” and was less sure about other possibilities such as spending several days with her because he had never done that.  He said that staying overnight with his mother would be “ok”. 

2. The younger child who impressed the Family Consultant as bright and engaging said that he likes seeing his mother and would like to visit her house adding that he “would like to see her for 100 hours but we only get two hours”.

3. Although the views expressed by the children given their age is not the most weighty consideration in these interim proceedings, I attach some weight to the children’s desire to see more of their mother and to see where she lives.

The nature of the relationship of the children with each of their parents, and other significant persons

1. It would appear from the Memorandum provided by the Family Consultant that both parents accept that the children have a close attachment relationship with each of them. 

2. The father who has been caring for the children with the assistance of the paternal grandmother since December 2015 will remain the children’s primary caregiver under both of the proposals under consideration. 

3. The paternal grandmother with whom the children also clearly share a close attachment relationship has been an important carer for much of their lives. 

4. The children have yet to develop any relationship with their mother’s partner.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the children

1. The mother has been unable to participate in long term decision-making in relation to the children for some years since they have been under the parental responsibility of the Minister and more recently the father alone.  The mother no longer presses for interim orders that she have sole or equal shared parental responsibility for the children and consents to an order that the father continue to hold sole parental responsibility.

2. The mother has been seeking to spend greater time with the children and increase the level of communication with them for some time.  She has diligently sought to address the matters of concern with respect to her parenting and initially proposed making application to vary the Children’s Court Orders in that jurisdiction.  Since the Minister consented to her commencing proceedings in this court, she has sought at all times to vary the current orders with respect to the children with a view to spending more time with them and normalising her relationship with them.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children

1. Each parent has fulfilled their respective obligations to maintain the children through financial support.  It would appear that the father provides financially for the children and that the mother pays Child Support as assessed.

Likely effect of any change in the children’s circumstances

1. Under the proposed orders of the ICL the children will gradually spend more time with their mother and greater periods of separation from their father and paternal grandmother.  Given both children’s expressed desire to spend more time with their mother, it is likely that such a change in their circumstances will be to their benefit and there will not be any detrimental effect of separation from the father and paternal grandmother. 

2. The introduction of some time with the mother during the school week and overnight time and the removal of supervision as proposed by the ICL is also likely to normalise the nature of the children’s relationship with their mother and remove the artificiality of supervision. 

Practical difficulty and expense of the children spending time with and communicating with a parent

1. Under the orders originally proposed by the father there was in my view significant cost and practical difficulty imposed on the mother with respect to her time with the children.  The father continues to propose that the mother demonstrate abstinence from the consumption of alcohol and illicit drugs for six months prior to any increase in her time and maintain compliance and demonstrate compliance with a treatment regime for “any prescription drug”.  He also proposes that she be required to attend upon a mental health practitioner and travel in a car in which she has installed an interlock device and provide the father with evidence of the same. 

2. So far as the interlock device is concerned, there is no evidence that the mother has ever committed a drink driving offence or uncontested evidence that she has driven while intoxicated.  Although this condition was imposed under the Children’s Court Orders for a period of three years, I am not satisfied that it is required in these circumstances where there is no unacceptable risk that the mother will drive while intoxicated.  That is not to say that the issue of monitoring the mother’s claimed abstinence from alcohol and illicit drugs is not of significance.  Rather I am of the view that the regime for monitoring proposed by the ICL raises less expense and practical difficulty for the mother than the proposal of the father while still addressing these matters of risk.

Capacity of each parent and other persons to provide for the children’s needs

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the children or either parent

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. Undoubtedly these will be significant considerations in the final hearing as the current applications involve a dispute about where the children will live and concerning parental responsibility. 

2. Each parent raises concerns about the other parent’s capacity particularly as it relates to each parent’s substance misuse and associated behaviour.  It is the father’s contention that the mother is untested in her capacity to care for the children other than in a supervised setting and he raises concerns with the Family Consultant about the mother’s caregiving capacity. 

3. The mother raises concerns that the father was violent to her during the relationship and is concerned that he may currently be using cocaine.

4. In this interim application these allegations are unable to be tested.  However, the matters of risk raised by the father have been considered and I am not of the view that any alleged incapacity on the part of the mother is so great that it is necessary for the protection of the children for her time to remain supervised and to impose conditions on her as he seeks.  I am not satisfied that the mother is incapable of meeting the children’s needs during the time that they will spend with her under the orders proposed by the ICL.  Further, the father will retain parental responsibility under the ICL’s proposed orders.

5. It is of significance in my view that the children were removed twice from the care of both parents by the Department due to matters associated with the parent’s lifestyle including excessive alcohol and illicit drug use.  After the children were returned to their parents initially following a period of care, concerns about the father’s alleged violence and the mother’s continue alcohol misuse led to those orders being rescinded and neither parent was recommended as an appropriate caregiver for the children.  Subsequently it was the view of the officers of the Department that so long as the father lived with his mother, that the Minister held sole parental responsibility for a period of 6 months and the father accepted the supervision of the Secretary, it was in the best interest of the children to be restored to his care. 

Family violence

1. As noted earlier in these Reasons, each parent makes allegations about family violence.  In my view, the family violence alleged must be considered in the context of the parent’s relationship at the time which was dysfunctional and affected by the drug and alcohol misuse of each of them.  Having regard to the findings of the Local and District Courts and the allegations taken at their highest, this does not appear to be a significant matter in these interim proceedings.  Both parents also concede that neither parent has been violent towards the children.

Conclusion

1. Both parents recognise that it is to the benefit of the children that they have a meaningful relationship with each parent.  The mother’s relationship with the children for about three years has been significantly curtailed as limits on that time and supervision requirements have been properly imposed to ensure that the children are protected from harm associated with her drug and alcohol use.  There were also mental health concerns which on the limited information available appear to have been associated with that drug use.

2. The orders made in the Children’s Court also recognise that once the mother had made significant inroads in addressing her alcohol and substance misuse and associated mental health difficulties the children would be benefited by spending more time with her.  I am not of the view that the father’s concerns about the mother’s abstinence and her mental health are of such a magnitude that her time with the children should continue to be limited and supervised.

3. In my view, the orders proposed by the ICL recognise the matters of concern in the mother’s household and to a lesser degree those matters of concern in the father’s household and propose a regime of orders which promotes the children’s relationship with both parents while protecting them from harm.  For this reason I make the orders as proposed by the ICL and consented to by the mother.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 July 2017.

Legal Associate:

Date:  7 July 2017