ELBERSON & BEARDALL
[2020] FCCA 2392
•8 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELBERSON & BEARDALL | [2020] FCCA 2392 |
| Catchwords: FAMILY LAW – Parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Lansa & Clovelly [2010] FamCA 80 L & T [1999] FamCA 1699 |
| Applicant: | MR ELBERSON |
| Respondent: | MS BEARDALL |
| File Number: | PAC 5954 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 25, 26 and 27 May 2020 |
| Date of Last Submission: | 27 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 8 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Strik of Counsel |
| Solicitors for the Respondent: | Mr Seeney - King & York Lawyers |
| Counsel for the Independent Children’s Lawyer | Ms Abdelraheem of Counsel |
| Solicitors for the Independent Children’s Lawyer | Claremont Legal |
ORDERS
The parties shall have equal shared parental responsibility for all long-term major decisions associated with the care, welfare and development of the children X born in 2008, and Y born in 2010 (the children).
The children shall spend time with the Mother as follows:
(a)For the next 3 months, on each fortnightly Saturday for at least 2 hours supervised by the B Contact Service (the contact service) at times and dates to be offered by the contact service;
(b)Thereafter for 3 months, on each fortnightly Sunday from 12pm to 5pm;
(c)Thereafter for 3 months, fortnightly from 9am Saturday to 5pm Sunday;
(d)Thereafter, fortnightly from after school or 3pm Friday to 5pm Sunday;
(e)Such other time as the parties may agree.
Should the Mother move to within a 10km radius of the children’s respective schools then, after spending time with the children pursuant to Order 2 (a), (b), and (c) above and for at least 3 months pursuant to (d) above, the children spend time with the Mother:
(a)For 12 months, fortnightly from after school or 3pm Friday to before school or 9am Monday;
(b)Thereafter, fortnightly from after school or 3pm Thursday to before school or 9am Monday;
(c)Such other time as the parties may agree.
The children shall spend time with the Mother, during school holidays, in the absence of agreement:
(a)During the short school holidays, commencing with the Term 1, 2022 school holidays, the children shall spend equal time with each parent as agreed between the parties and, failing agreement, as follows:
(i)the children shall spend time with the Father for the first half and with the Mother for the second half.
(b)During the long summer NSW school holidays, the children shall spend time with each parent as follows:
(i)Commencing December 2022 and each even numbered year thereafter with the Mother for the first half and with the Father for the second half.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with their Father from 9.00am to 5.00pm on Father’s Day, unless they are already in his care.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with their Mother from 9.00am to 5.00pm on Mother’s Day, unless they are already in her care.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties, the children shall spend time with the non-resident parent on each of their respective birthdays as follows:
(a)During non-school days: From 11:00AM until 4:00PM.
(b)During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
Notwithstanding anything else contained within these Orders and unless otherwise agreed between the parties, the children shall spend time with the Mother on the Mother’s birthday (unless already in the Mother’s care) for a minimum of five (5) hours at a time as agreed between the parties and, in default of agreement, as follows:
(a)During non-school days: From 11:00AM until 4:00PM.
(b)During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
Notwithstanding anything else contained within these Orders and unless otherwise agreed between the parties, the children shall spend time with the Father on the Father’s birthday (unless already in the Father’s care) for a minimum of five (5) hours at a time as agreed between the parties and, in default of agreement, as follows:
(a)During non-school days: From 11:00AM until 4:00PM.
(b)During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
For Christmas 2020, the children shall spend time with the mother for at least 3 hours on any one of Christmas Eve, Christmas Day, or Boxing Day, at the selection of the mother, and provided the mother informs the father of her selection at least 14 days prior to such days. In the absence of agreement between the parties, such 3 hour period (or longer period if agreed between the parties) shall occur between 3 PM and 6 PM.
For Christmas 2021, and Christmas periods thereafter, the children shall spend time with the mother from 12 PM Christmas Eve until 12 PM Christmas Day in odd numbered years and from 12 PM Christmas Day until 12 PM Boxing Day in even numbered years.
Changeover shall occur at locations as agreed between the parties, and in default of agreement, changeover shall occur as follows:
(a)On school days:
The parent with whom the children are to spend time will collect the children from their respective schools. If a parent’s time concludes outside of school hours, changeover shall otherwise occur at Suburb C Train Station.
(b)On non-school days:
The parent with whom the children are to spend time shall collect the children from Suburb C Train Station.
That the children may communicate with each parent at such time as the children so wish and the other party shall facilitate and encourage such communication by telephone, in writing or by other electronic means including, but not limited to, e-mail, Skype or FaceTime.
For the purposes of the above Order, each parent shall facilitate such communication by ensuring that the children are available to talk to the other with privacy and without interference.
Each party is hereby permitted to attend any school event or function to which parents normally attend including, but not limited to, the first day of school, open days, parent/teacher interviews, parent days, assemblies, concerts and the like even when the children are not in his/her care.
Each party is entitled to attend all extra-curricular events involving the children including sporting, music performances, eisteddfods and all other extra-curricular fixtures and performances, and the parent who has the child in their care of the day of such activity will be responsible for the child’s day to day care at such event and the child’s transportation to and from that event.
Each parent is restrained from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.
That the Father be permitted to enrol the children at D School and E High School.
That each parent keep the other parent informed of:
(a)Their residential address, an email address and a contact telephone number;
(b)The details of any other person residing in the same house as the children;
(c)Any significant injury or illness suffered by the children, or either of them, and details of all subsequent medical treatment given to the children, or either of them; and
(d)The schools the children are attending and any extra-curricular activities in which the children are involved.
That each parent be permitted to communicate with the children's schools and to request and receive copies of all school reports, notices, newsletters, bulletins, applications for school photographs and other correspondence from the children's schools.
That the Father be permitted to provide the Principals of the children's schools with a copy of these Orders within 28 days of the date of the Orders and will authorise the Principals to facilitate these Orders.
That Father be permitted to travel outside the Commonwealth of Suburb D with the children provided that the Father provide to the Mother no less than 28 days' notice of any intended overseas travel.
That the Father have sole responsibility for giving consent and making arrangements for the issue of Suburb D passports in the names of the children.
The Father shall, within 6 weeks, enrol in and thereafter complete either the Tuning into Kids, or Tuning into Teens course.
The parents shall, within 21 days, enrol in and thereafter complete a Parenting Orders Program, such as the Keeping Contact course.
The ICL shall be permitted to request 2 hair follicle tests of the Mother over a period of six months from the date of these Orders. Following each request the Mother shall submit herself for hair testing and provide such hair samples as directed by The Drug Detection Agency for the purposes of analysis of drug use in relation to non-prescription drugs including but not limited to:
(a)Methadone Metabolite,
(b)Opiates,
(c)Amphetamine type substances,
(d)Benzodiazepines,
(e)Cannabinoids,
(f)Cocaine Metabolite,
(g)Crystal Methamphetamines,
(h)Barbiturates,
(i)Buprenorphine, and;
(j)Tetrahydrocannabinol
The ICL shall have liberty to relist the proceedings on 7 days’ notice should any hair follicle test of the Mother be returned positive for illicit drugs.
That within 14 days from the date of the making of these orders, the Mother is to attend upon a psychologist with experience in drug addiction counselling, as approved by the ICL, and comply with the following;
(a)The Mother is to attend all appointments as scheduled by the psychologist;
(b)The Mother is to follow all recommendations given by the psychologist;
(c)The Mother is to provide correspondence from the Psychologist to the ICL and to the Father’s solicitor stating compliance with orders (a) and (b) above within 3 months; and
(d)The Mother is to be granted leave to provide a copy of the family report of Ms F dated 15 May 2019 and child inclusive conference memorandum dated 12 February 2020 to her psychologist.
The parents shall be restrained from consuming any illegal drugs 24 hours prior to and during the children being in their care.
The Mother shall immediately remove the children from the presence of any persons she perceives to be affected by or consuming illegal drugs.
The parents shall be restrained from consuming any alcohol above the legal driving limit of 0.05 when the children are in their care.
The Mother be restrained from allowing any person who is using or is affected by illicit drugs to be present and/or to reside in her residential premises, during times that she has the children in her care.
The ICL shall remain appointed for a period of 12 months from the date of these orders.
Leave to the ICL to relist the proceedings on 7 days notice in the event of any significant difficulty arising relating to the implementation of the above orders.
IT IS NOTED that publication of this judgment under the pseudonym Elberson & Beardall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5954 of 2017
| MR ELBERSON |
Applicant
And
| MS BEARDALL |
Respondent
REASONS FOR JUDGMENT
Introduction
This final parenting hearing relates to the children X born in 2008, and Y born in 2010.
Proposals
The Father’s Amended Initiating Application filed 30 January 2020 seeks final parenting orders, inter alia, that:
a)the Father have sole parental responsibility for the children;
b)the children live the Father;
c)the children spend time with the Mother for a period of 12 months for 2 hours each fortnight supervised by the B Contact Service;
d)following the above 12 month supervised time, the parties attend a Family Dispute Resolution to discuss the introduction of regular unsupervised time by reference to the children’s best interests;
e)the Mother be restrained, inter alia, from consuming any illicit substance while the children are in her care and for a period of 48 hours prior.
The Mother’s proposals are set out in her Amended Response filed 21 May 2020; the Mother seeks orders, inter alia, that:
a)the parties have equal shared parental responsibility for the children;
b)from the date of these orders until the Mother moves within a 10 km radius of the children’s respective schools, the children spend time with the Mother each alternate weekend from after school Friday until 5 PM Sunday;
c)following the Mother relocating to a residence within 10 km of the children’s respective schools, the children live with the Mother in week one, from after school on Wednesday until the commencement of school on Friday, and in week two, from after school on Thursday until the commencement of school the following Monday; that otherwise the children live with the Father.
The ICL’s proposed Minute of Orders sought orders, inter alia, that:
a)the Father have sole parental responsibility for the children;
b)the children live with the Father;
c)for a period of six months, the Mother submit herself to a certain regime for hair testing for the purposes of analysis of drug use;
d)pending the Mother providing two negative hair follicle test results for the consumption of illegal drugs, the Mother shall continue to spend time with the children at the B Contact Centre.
The ICL sought further orders, inter alia, that:
a)the Mother submit herself to further hair follicle testing for additional periods should she fail to comply with initial orders for hair follicle testing, and the continuation of supervised time in certain circumstances;
b)the ICL sought certain orders, in the event that the Mother provided two consecutive negative hair follicle test results, on a differing basis, depending on whether the Mother had her own accommodation and was not living with any other persons;
c)the ICL sought restraining orders relating to the parties consuming illegal drugs or alcohol in relation to the children.
Material relied upon
The Father relied upon the following documents:
a)Case outline dated 16 February 2020;
b)Amended Initiating Application filed 30 January 2020;
c)Affidavit of Father filed 30 January 2020;
d)Affidavit of Ms G file 31 January 2020;
e)Affidavit of Ms H filed 3 February 2020;
f)Affidavit of Ms J filed 31 January 2020;
g)Written Submissions dated 23 June 2020.
The Mother relied upon the following documents:
a)Her Case Outline of 22 May 2020;
b)Her Amended Response filed 21 May 2020;
c)Her Affidavit filed 21 May 2020;
d)Her written submissions dated 30 June 2020.
The ICL relied upon the following documents:
a)Case outline filed 16 February 2020;
b)Closing submissions document.
The following exhibits were relied upon:
a)Exhibit A –Family Report of Ms F dated 15 May 2019, and Child Inclusive Conference Memorandum dated 12 February 2020
b)Exhibit B –Tender Bundle of the ICL
c)Exhibit C – Tender Bundle of the Respondent Mother
d)Exhibit D – 5 pages of documents including bundle of awards tendered by the Applicant Father
e)Exhibit E – Respondent Mother’s Tender Bundle 2
f)Exhibit F- Certificates of completion of courses tendered by the Applicant Father (plus awards)
Evidence
The Father is aged 50 years. The Mother is aged 41 years.
The parties commenced their relationship in 2007. After the child X was born in 2008, the Mother returned to work as a health care worker and the Father stayed at home to look after this child.
They separated on a final basis in about September 2010.
Following the parties’ separation, the Mother was the children’s primary carer.
Between September 2010 and January 2013 the children spent time with the Father fairly regularly, usually during the daytime for an hour or two and sometimes overnight. Often the Mother would come along when the children were spending time with the Father.
In 2011, the Father began a relationship with his current partner, Ms H, and they were married in 2013, and lived together in Suburb K.
In about March 2012, the children spent time with the Father at his house for the first time, without the Mother. After this, the children started spending time with the Father roughly once a fortnight for about 2 to 3 nights at a time.
After the children spent time with the Father overnight in about mid July 2012, they next spent time with the Father in October 2012.
The Father then spent time with the children briefly in late October 2012, in late November 2012, December 2012, and January 2013.
After January 2013, for a period, the Father sought to spend time with the children and spoke with the Mother in this regard. The parties had verbal disputation and exchanged abusive text messages to each other. The Father ceased to contact the Mother as he found that his contact with the Mother was unproductive and just made him upset. Towards the end of 2016 the Father sought to mediate with the Mother.
Between February 2017 and May 2017, the children had a number of short visits with the Father, with the Mother present. There was an overnight visit in late May 2017. Thereafter the children began spending time with the Father about once a fortnight for an overnight visit. Then during the July 2017 school holidays the children spent 10 days with the Father. After this holiday visit, the children spent time with the Father for one night each fortnight for a brief period.
Between August 2017 and July 2018, the Father saw the children on one occasion only being the Father’s day breakfast at the children’s school on 1 September 2017.
On 29 November 2017, the Father commenced proceedings in this Court.
In about mid-2018, the Father ascertained from the children’s school that the children had been missing significant time from school.
In relation to the mentions of these proceedings in about the first half of 2018, the Mother did not attend Court.
The Father spent time with the children on 14 July 2018.
The Mother had quit her job a few years prior to about early July 2018 and by July 2018 she was struggling financially. Her mortgage repayments were in arrears, and she could no longer afford to make the repayments. She had received a default notice and was about to be evicted.
In about mid-September 2018, the Mother’s brother contacted the Father and told him that he should go to the Mother’s residence and pick up the children. The Father was informed, inter alia, that the Mother had been evicted from her residence. The Father went to the Mother’s residence, and the Mother refused the Father permission to see the children. The Father called the police. Town L police responded. The residence of the Mother was inspected by the Father and the police. The backyard of the residence was littered with items. The police spoke to the Mother at the police station. A police officer told the Father that the children were to go home with him.
For about the next three weeks the children lived with the Father at his residence. The Father facilitated the children speaking to the Mother over the telephone.
The Mother then moved from Suburb M on the Region N to Suburb O in Sydney.
On 27 September 2018, consent interim parenting orders were made providing, inter alia, the parties to have equal shared parental responsibility for the children, for the children to live with the Mother and spend 6 nights each fortnight with the Father. Orders were made that the Mother undergo urinalysis testing for illicit drug use at the request of the ICL. The children were returned to the Mother’s primary care on about 9 October 2018.
Thereafter, the children did not spend time with the Father, nor speak to the Father on the telephone, pursuant to the interim parenting orders. The Mother asserted to the Father, inter alia, that the children did not want to spend time with the Father.
As at 28 November 2018, the Mother had failed to carry out two urinalysis tests that the ICL had requested on 22 October 2018 and 14 November 2018. The Mother could not afford to pay for these urinalysis tests; inter alia, she had been forced out of her home in about mid-September 2018, she was not in paid employment, and the children were in her care.
In January 2019 the Mother moved from her residence in P Street, Suburb O, to another residence in Q Street, Suburb O. The Mother had later moved to a residence in Suburb R for a brief period.
On 28 March 2019, interim parenting orders were made providing for the children to spend time with the Father each Saturday from 30 March 2019, beginning with 4 hours and increasing to 7 hours after a few weeks. Thereafter, the Mother did not facilitate the children spending time with the Father. The Mother asserts that the children did not want to spend time with the Father.
The Mother acknowledges that she did not facilitate the children’s time with the Father for some time. She asserts that she had been feeling incredibly “off”, and finding it difficult to complete basic daily tasks. Further, she was experiencing issues in securing proper housing. She sought assistance with accommodation through the Department of Housing. The Mother obtained temporary rehousing in Suburb S, and then Suburb T. The Mother was not driving at the time and there was no convenient public transport. She found it difficult to get the children to school. The Mother acknowledges that the children missed quite a significant number of school days. She acknowledges that she should have taken further steps to ensure the children’s ongoing school attendance.
The Mother’s health was declining at about this time. She was tired, weak, suffering from insomnia, and unable to rest. She was also nervous, anxious and restless. She went to see a GP in August and September 2019 receiving diagnoses of the flu.
In early August 2019, the Father was informed by the children’s school that they were not in attendance at school. The Father was informed a short time later that the Mother and children were not residing at P Street, Suburb O. The Father gave the school a further address for the Mother being U Street, Suburb R. Thereafter the police ascertained the Mother had moved out of those premises.
In August 2019, the Father ascertained that the children had missed significant time from school in 2019, and many of these absences were listed by the school as unjustified. The Mother acknowledges that her declining health and housing issues caused her to be less than vigilant about the children’s school attendance.
Following the Mother’s non-appearance at the hearing of the Father’s Contravention Application, the Court made a recovery order in relation to the children in favour of the Father on 21 August 2019. The following day the children were returned by the police into the Father’s primary care.
At this time the Mother acknowledges that her health was continuing to deteriorate.
Thereafter, over the next few months, the children settled into their new routine in the Father’s primary care.
On 23 September 2019, the parties agreed to interim parenting orders providing, inter alia, that the children have weekly telephone calls with the Mother, and for the Mother to begin to spend supervised time with the children at the B Contact Service. By this time, the Mother was living in an apartment at Suburb V, where she was residing as at the date of swearing her Affidavit filed 21 May 2020.
Thereafter, the child X was reluctant to speak to the Mother over the telephone however the child Y had regular twice-weekly telephone time with the Mother.
Towards the end of 2019, the Father decided to enrol the children in schools close to his residence in readiness for the 2020 school year. The Father enrolled the child Y at D School, Year 4, and the child X at E High School for 2020, Year 7. The Father had been travelling to and from his residence to Suburb O Public School which took significant time.
In about late 2019, the Mother was admitted to W Hospital and she was diagnosed with a Disease, that causes hypothyroidism, which was the cause of her heart failure at that time. The Court refers to the Discharge Summary from W Hospital dated 22 November 2019, being Annexure B to the Mother’s Affidavit filed 21 May 2020. Her brother suffers from the same illness.
In January 2020 the Mother suffered from a mild heart attack as a result of complication with her thyroid medication, which led to her hospitalisation for over a week. The Mother asserts that her health is now significantly more stable than it was previously. She asserts that her medication is now being overseen by a cardiologist, and the cardiac team at W Hospital. Her thyroid issues are also being managed more effectively by an endocrinologist and his team.
On 19 February 2020, the Mother informed the Court that due to ill health she was unable to attend the final hearing listed for that day.
The children attended their first visit with the Mother on 11 January 2020 at the B Contact Service. On 25 January 2020, the contact service told the Father that the Mother was sick in hospital.
The child, Y, in particular, missed the Mother when he first came to live with the Father as he and the Mother are very close, according to the Father.
Since the children came to live with the Father on 22 August 2019, they have not missed any full days of school. The Mother states the children have spoken fondly of their schools, and she is of the view that she does not think it is appropriate to uproot them and she supports their ongoing enrolment at their current schools.
At the Father’s residence, the children have their own rooms.
The Father has held employment in the transport industry. In his Affidavit affirmed 30 January 2020, he states he is currently unemployed although he will look for work once the children are settled into their new routine in 2020.
The Father’s partner works as a health care worker at Employer Z. She works from 9 PM until 7 AM each Monday, Tuesday and Wednesday, and every second Sunday.
The Paternal Grandmother lives about 30 minutes away from the Father’s residence. The Father has a good relationship with the Paternal Grandmother, the Mother’s step-father (the Paternal Grandfather) and most of the Mother’s siblings.
The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Father stated that if the child Y did not want to speak on the telephone with the Mother he would not force him.
The Father was asked, in the context of the children commencing to spend supervised time with the Mother, whether it was important for the children to reconnect with the Mother. The Father replied that the children could speak with the Mother (on the telephone).
The Father stated that, having received a letter from the contact centre dated 27 March 2020, in relation to supervised video conferencing through the use of Zoom and supervised phone calls, that he had made no attempt to contact the contact centre. He was asked why he did not respond to that letter and he stated that he did not know.
The Father stated that he would facilitate the children having telephone time with the Mother provided that he was at home and that the children wanted to speak with the Mother. He stated that he would not force the child Y to speak to the Mother if Y did not want to speak with her and he would not encourage him to do so in these circumstances.
It was suggested to the Father that in his home he and his wife do not talk about the Mother favourably. He responded by stating that he does not talk about the Mother much at all.
The Father stated that the children had made the Mother a Mother’s Day envelope but it was not completed. He stated that he left it to the children to complete it.
The Father stated that he did not encourage the children to speak with the Mother on Mother’s Day.
The Father was asked whether he believed it was important for the children have a relationship with the Mother. The Father replied that it was not (important) while the Mother was in her present situation.
The Father wants the Mother to have a role to play in the children’s lives. He wants the children to maintain their relationship with the Mother. However, he stated that this was subject to the Mother’s drug testing and her not associating with “drug people” and criminals.
The Mother, in her Affidavit filed 21 May 2020, asserts that she has previously used cannabis and methamphetamines recreationally and irregularly but has been abstinent for the last 8 months. She asserts that she holds serious concerns that if she takes drugs it will put her health at serious risk considering her heart issues.
Of her own volition, the Mother undertook a chain of custody urinalysis test on 18 October 2019. The test results were negative for certain illicit and other drugs.
Pursuant to Court orders of 16 December 2019, the Mother undertook a hair follicle test on 20 December 2019 and returned a clean result for certain illicit and other drugs.
The Mother acknowledges that she has not been present during any Court dates and should have taken more initiative throughout the proceedings. She acknowledges that it is her own conduct that resulted in many adverse outcomes that resulted in the children not being able to spend more time with her. She states that for this she has no excuse and shall never be able to take the time back.
The Mother states she has a motor vehicle.
The Mother re-partnered with Mr AA in about late 2019. He is not currently living with the Mother. The Mother stated that she and Mr AA are taking things relatively slowly. The Mother stated that Mr AA has been a long-time friend of hers and the children know him well, and he has two daughters, one of whom is close in age to X.
The Mother states that in the event that the Court makes an order for the children to live with her, or spend significant and substantial time with her including days at school, she will move closer to the children’s schools and remain there. She asserts that she would be able to move within a fortnight. The Mother is not currently working and is receiving government benefits.
The Mother refers to the Maternal Grandmother forming a relationship with the Paternal Grandfather. The Mother asserts that she and the Maternal Grandmother had a falling out in 2014.
In late March 2020 the contact centre informed the parties that face-to-face supervised time was no longer possible due to Covid19 and they recommended that supervised time occur through videoconferencing.
As at 21 May 2020, the Mother had only spent time with the children at the contact centre on a handful of occasions. She was speaking with the children on the telephone, however, the Mother speaks to the child Y far more frequently than she does with the child X, who essentially only passes messages to the Mother through Y.
The Mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Mother stated that her previous use of methamphetamines was a few times each fortnight. She used it regularly when she lived on the Region N with the children. She stated she currently does not ingest either methamphetamines or cannabis. She last used methamphetamines eight months ago.
The Mother told the Court that she used methamphetamines on the Region N regularly because she was quite isolated, she felt lonely, and she did not manage her Father’s death in 2014 well. The Mother stated that she had not obtained mental health treatment and had seen a counsellor briefly. She had never had drug counselling.
The Mother stated she planned to move residence close to where the children lived at Suburb D. The Mother stated that she has friends. She was not sure if her new partner Mr AA would follow her to a new residence near where the children lived at Suburb D, although he may spend some time with the Mother at such possible new residence. The Mother stated that Mr AA has a criminal record for drug offences.
The Mother confirmed that she had lost her driver’s licence a few years ago for a period of three months. She had been driving under the influence of methamphetamines and cannabis.
The Mother stated that she was willing to explore ways to better communicate with the Father. She believed she communicated effectively and respectfully with the Father.
The Mother confirmed that she had not done a post separation course regarding separated families.
The Mother stated she ceased working as a health care worker in 2015.
The Mother stated she had not used illicit drugs in front of the children. She acknowledged that she had spent money on illicit drugs from her Centrelink payments.
The Mother stated that she felt good about the Father’s wife being the children’s step-mother if she was a positive influence in the children’s lives.
The Mother stated that she had previously established a business in Suburb M on the Region N, on her own. She stated that sometimes the business generated an income but overall it was a failure. She closed it in 2016. For a brief period she worked at a business in Suburb M.
The Mother confirmed that she had been evicted from her property at Suburb M having ceased to make mortgage loan repayments in relation to this property. She had sought to negotiate with the mortgagee bank unsuccessfully. There were Supreme Court possession proceedings and in September 2018 she was required to leave the property.
The Mother stated that as at 18 September 2018 she was not living at the property at Suburb M but had obtained emergency accommodation in Town BB for 4 nights. She had also stayed at a friend’s place at Town BB.
The Mother confirmed she had moved to P Street, Suburb O, with the lessee being Mr CC. The Mother had known him for a number of years. He had been in rehabilitation at some point for drug use.
The Mother confirmed that she was at the premises at P Street, Suburb O on 14 January 2019 when the police attended those premises. She had told the police at this time that she was temporarily staying there. There were persons present at these premises inside a bedroom who appeared to the police to be drug affected.
When questioned by counsel for the ICL, the Mother stated that the last time she had used methamphetamine was in about October 2019. She stated that when the children went to live with the Father in August 2019, she used methamphetamine again. She stated that the trigger to use methamphetamine again was the children going to live with the Father.
The Mother stated that she did not believe that her use of methamphetamines when the children were in her primary care impacted negatively upon her parenting of the children, but she accepts that money spent on methamphetamines could have been better utilised.
The Mother stated that she does not now associate with drug users or persons involved in criminal activities.
The Mother stated, in relation to her illness, that she has devoted time to her recovery and recuperation. In this context she stated that she needs to have regular blood tests.
The Mother stated that, if she needed to, she could afford to pay for not less than two hair follicle drug tests this year. She was happy to carry out hair follicle drug testing.
The Father’s wife, Ms H, gave evidence. The Court does not propose to set out the entirety of her evidence.
In her Affidavit, she stated that in early 2012, she expressly told the Mother that she was not welcome in her home with the Father, albeit after the Mother had said to her that she wanted to check if the children were settled at their residence.
In both her Affidavit and in oral evidence she stated that the Mother had told the Father, at the time of the marriage of the Father to Ms H in 2013, that if the Father married her he would never see the children again.
In her oral evidence, she stated that she did not want to be close friends with the Mother. She stated that she does not have a good relationship with the Mother. She stated that the Mother was an acquaintance, not a friend.
When asked whether she found it difficult to talk positively to the children about the Mother, she stated that the children love the Mother.
When asked what she had done to encourage the child Y to speak to the Mother on the telephone, she stated that the Father and herself did not force the child Y to speak to the Mother.
She confirmed that the Father had initially become upset with the child Y not eating the food that was presented to him after he went to live with the Father in about August 2019. The Father initially had raised his voice to Y. She stated the Father had not threatened to hit Y with a belt. The Father had changed between then and now in relation to this issue.
The Paternal Grandmother gave evidence. The Court does not propose to set out the entirety of her evidence.
She stated that she had last seen the children at the beginning of March 2020. She observed that the children seemed normal happy children.
The Maternal Grandmother swore an Affidavit on 31 January 2020. She was not cross-examined.
The Maternal Grandmother stated that since the children have been returned to the Father’s primary care, she observed many positive changes in the children, including in relation to their schooling and diet. The children are renewing their associations with their maternal and paternal extended families. She has observed that the Father’s wife has developed a positive relationship with the children.
The Family Report
The author of the family report was Ms F. The report was dated 15 May 2019. The family consultant interviewed the parties and children on 11 April 2019.
Neither party reported any concerns regarding the Mother’s mental health.
The Father told the family consultant that the dinner times with the children had been a challenge as the child Y’s diet was extremely restricted.
The Mother told the family consultant that when the child X was younger, the Father was the primary carer, whilst the Mother worked to provide income for the family.
The Mother stated that she does not have any concerns for the children’s safety whilst in the Father’s care, but stated that he uses old school discipline, although she does not believe that he would beat them.
The Father’s wife told the family consultant that when the children came to live with the Father in September 2018 they were happy and had settled quickly into a routine.
The Mother told the family consultant that during 2018 she had smoked about 15 to 20 cones of marijuana per fortnight and that she last used in November 2018.
The Mother stated that she last used methamphetamine in 2018. She reported that she used “when the opportunity arose”, about once or twice per week. She stated that the effects of using methamphetamine was that she was awake all night and not in the best frame of mind the next day, but said that she was able to catch up on sleep when the children were at school. She said that at times the methamphetamine had a positive effect on her mood and functioning, causing her to be highly productive.
The Mother told the family consultant she does not have any current concerns regarding the Father’s mental health.
The Father told the family consultant that he recently completed a Focus on Kids course, and that he felt it would be useful for the parties to adopt a business structure communication without any emotional discussions. He stated that email would be the best way for the parties to communicate because the Mother “knows how to push my buttons” when talking face-to-face. He stated that he is able to walk away when angered, but prefers to have no direct communication with the Mother.
The child X stated to the family consultant that she does not really know much about the Father, because she has not really seen him much. She stated that she gets along alright with the Father’s wife. She stated that she has to see the Father every Saturday, but that she had not done this because she had been busy with practising her musical instrument. She stated that she did not want to see the Father.
The child Y told the family consultant that he had had fun with the Father, and only did not like being at the Father’s house when he was pressured to eat food.
Following the observation session between the children and the Father and his wife, the child Y hugged the Father willingly. The child X approached the Father to say goodbye and appeared as though she would hug him, before turning away. He asked her for a hug and caught her arm and hugged her. She laughed, and then willingly hugged the Father’s wife.
Under the heading Evaluation, the family consultant stated, inter alia, that the child X’s expressed reason for not spending time with the Father was inconsistent with the Mother’s reports that this child was distressed about spending time with the Father.
The family consultant observed that the child Y appeared happy to be spending time with the Father, but noted that this child stated that this would be easier if there was less pressure regarding the foods he ate.
The family consultant recommended that the children’s stated views regarding their parenting arrangements be given little weight.
The family consultant stated that the Mother did not appear to have an understanding of the impact that her substance use and inconsistent lifestyle may have on the children.
The family consultant stated that the Father described his discipline upon the children as old school, but did not appear to have insight into the anxiety his methods may cause in the children.
It was recommended that each parent engage in parenting courses, such as Triple P, and Tuning into Kids, in order to assist them in understanding better the children’s emotional needs and developing new ways of managing their behaviours.
The family consultant recommended that the parents engage with Keeping Contact, a parenting program to support parents manage their co-parenting relationship in a constructive manner and to develop their parenting capacity in the context of this relationship.
The family consultant observed, in relation to the issue of parental responsibility, that the pattern of interaction between the parents appears to be one of conflict and avoidance. She stated that where it is considered physically and psychologically safe, the close involvement of two interested parents in the child’s care provides many benefits for a child’s well-being, including improved social and emotional well-being. If the Father was able to be consistently involved in the children’s lives and in their care, it may increase their sense of stability and consistency. However, increased exposure to parental conflict would be considered detrimental to the children’s well-being. As such, it was recommended that the parents share parental responsibility and that all parental communications, except in an emergency, occur in writing, such as through an established email address, and remain child focused in nature. Completing a parenting orders program, may assist in developing productive communication and reducing parental conflict.
The family consultant stated that if the Court finds that the children have been previously placed at risk of significant harm by the Mother, then it may be that they continue to be at risk of harm in the Mother’s care, particularly if she has not taken adequate steps to address her substance use. She stated that if the Court finds that the children are at unacceptable risk of harm in the Mother’s care, then the Father’s proposal was recommended, that the children live with him. In this case, it was recommended that the children spend supervised time with the Mother until it is demonstrated that she is actively engaged in drug and alcohol counselling and that she has abstained from drug use for a period of at least three months.
The family consultant’s final recommendation included a recommendation that if it was found that the Mother presented an unacceptable risk of harm to the children, then it was recommended that the children live with the Father, and the children spend alternative Saturdays with the Mother, supervised by a children’s contact service, until she is engaged in ongoing drug and alcohol counselling and has demonstrated that she has abstained from drug use for three months, at which time the children’s time with her be unsupervised, and incrementally increase to alternate weekends.
It was recommended that each parent engage in the Keeping Contact Program, as well as a parenting program such as Triple P or Tuning into Kids.
The Child Inclusive Conference
This conference was held on 12 February 2020. The family consultant Ms F conducted the conference.
The Father and children attended the conference, whilst the Mother did not attend.
The child Y told the family consultant, inter alia, that it is good to see the Mother once per fortnight. He said he was happy with the amount of time he currently spends with the Mother, and was happy for his parenting arrangements to remain as they are.
The child X told the family consultant, inter alia, that she would like to remain living with the Father, but would like to see the Mother more frequently, such as once or twice per week. She said that if she was to return to live with the Mother, she would be fine, but that she would not wish to change schools again, and that the long drive from the Mother’s residence to her school would be problematic.
The family consultant stated that the children expressed a clear preference to remain living with the Father. She stated that counselling with an independent clinician may assist the children in discussing the impact that their parenting arrangements and history of parental conflict may have had on them.
The family consultant stated that both children expressed a clear desire to maintain a relationship with the Mother, through regular visits. She stated that it was likely that the diminishment or loss of the children’s relationship with the Mother would present a grief for the children, which would impact their social and emotional development, and cause them distress.
The family consultant stated that if orders were made that the children’s time with the Mother be supervised for an extended period of time, it may be beneficial to the children if a suitable family member can be identified to provide such supervision.
In relation to the Father having described his parenting style as aggressive at times, and the Father having acknowledged that this had, on occasion, startled the children or triggered a distressed reaction, a parenting course such as Tuning into Kids, or Tuning Into Teens may assist the Father in his efforts to build on his parenting role at the children, and support them with their emotions.
The family consultant stated that given the many changes of residence, schooling and parenting arrangements that the children have experienced in the 18 months prior to this assessment, it was likely that further major changes to their circumstances will be detrimental to their well-being. She stated that this was consistent with the children’s expressed views.
The family consultant stated that if it is found that the Mother presents an unacceptable risk of harm to the children, due to misuse of substances, it was recommended that:
a)the children live with the Father;
b)the children spend supervised time each alternate Saturday with the Mother, until she is engaged in ongoing drug and alcohol counselling, and has demonstrated that she has abstained from drug use for 3 months, at which time the children’s time with her be unsupervised, and incrementally increased to alternate weekends, but that this contact be contingent on the Mother’s willingness to adhere to orders made.
The family consultant stated that if it is found that the Mother does not present an unacceptable risk of harm to the children, it was recommended that:
a)the children live with the Father;
b)the children spend time with the Mother alternate weekends, from Thursday after school until Monday morning before school, as well as alternate Thursday afternoons to Friday mornings, but that this contact be contingent on the mother’s willingness to adhere to Orders made.
The author of the family report and the Child Inclusive Conference Memorandum, Ms F, gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The family consultant stated that she had read the parties’ updating Affidavits, including the Mother’s Affidavit filed 21 May 2020. She stated that based on the material that she had read, she did not wish to change her recommendations set out in the Child Inclusive Conference Memorandum.
The family consultant stated that it would be beneficial for the children, particularly given their ages, to be able to spend time with the Mother in a natural environment if it was considered safe for them to do so. In this context, she stated that the children have had a long and apparently warm relationship with the Mother. She stated that it was important for children, particularly older children, to be able to spend time with parents in a natural setting to build a relationship.
The family consultant stated that for the benefit of protecting the children from the parties’ conflict, less contact between the parents would be better and any contact that they do have should be in writing.
The family consultant stated that she was not confident that the Father demonstrated that he had any great respect for the Mother’s opinion or would necessarily include her opinion in any decisions he makes for the children.
The family consultant stated that it will be appropriate for the children to have special days with the Mother being birthdays, Easter and Christmas, and Mother’s Day, subject to their safety.
The family consultant stated that it was important for the children to have regular and consistent communication with the Mother. She stated that if an option was available for the children to have video time with the Mother, supervised, that would be something that she would suggest should happen as soon as possible.
The Court accepts the evidence of the family consultant, subject to any different view expressed by the Court below, whether expressly or by implication.
Relevant legal principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
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: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have a meaningful relationship with the Father, which continues to develop positively, the Court observing that the children came into the Father’s primary care in August 2019 having previously not spent consistent regular time with him. They had briefly been in his primary care for a few weeks from about mid-September 2018, before returning to the Mother’s primary care. They will benefit from a continuance of those relationships with the Father.
The children, post separation (September 2010) and up until about August 2019 (when the children came into the Father’s primary care), were in the Mother’s primary care. Again, there were a few weeks from September 2018 when the children were in the Father’s primary care.
Fortunately, the children continue to have a meaningful relationship with the Mother, despite the children not spending time with the Mother from August 2019 until early January 2020, being the first contact centre visit. The children will benefit from a continuance of those relationships with the Mother, provided it is safe for them to do so.
Again, the children attended their first visit with the Mother on 11 January 2020 at the B Contact Service, following the Court’s orders for supervised time between the children and the Mother on 23 September 2019. In late March 2020 the contact centre informed the parties that face-to-face supervised time was no longer possible due to Covid19 and they recommended that supervised time occur through videoconferencing.
As at 21 May 2020, the Mother had only spent time with the children at the contact centre on a handful of occasions. She was speaking with the children on the telephone however the Mother speaks to the child Y far more frequently than she does with the child X.
There remains a real risk that the Father and his wife will not significantly support the children’s relationship with the Mother should the children remain living in the Father’s primary care.
The family consultant had stated that it was likely that the diminishment or loss of the children’s relationship with the Mother would present a grief for the children, which would impact their social and emotional development, and cause them distress.
Accordingly, subject to the children being safe, it is important that the children begin to spend regular time with the Mother, increasing on a graduated basis, so as to ensure that their meaningful relationship with her can be maintained and enhanced.
The children’s time with the Mother should ultimately (see below) increase more significantly if she is living closer to the children’s schools (i.e. within 10kms of those schools), noting the Mother is presently living at Suburb V and the Father at Suburb D, because practically the parties will be able to facilitate and implement such increased time with the mother living relatively closer to the children’s schools.
The Court is of the view that the children will be provided with greater stability living in the primary care of the Father. The children experienced instability in their lives in terms of their regular attendance at school and accommodation whilst living in the Mother’s primary care for certain periods.
The children have been in the Father’s primary care for about a year and are well settled. The children have been well cared for by the Father and his wife, albeit that they have not consistently promoted the children’s relationship with the Mother. The Father has stable substantial accommodation and he has usually been in stable employment.
The Mother’s present accommodation position is that she is now leasing an apartment on a holding over basis, the formal term of the lease having expired. At the final hearing, the Mother indicated she intended to move residence to be closer to the children’s residence in Suburb D.
The Mother is presently unemployed, in particular while she has concentrated on her health recovery. The Mother has previously worked as a health care worker, although it is unclear as to when the Mother might return to gainful employment. She obtains government benefits for her subsistence.
As to the Mother’s proposal, should she relocate to a residence within 10km of the children’s respective schools, that she spend time with the children, in the aggregate, six nights each fortnight, the Court would observe that such proposal approaches an equal time arrangement. The Court is of the view that the parties would not be able to successfully co-parent the children in circumstances where the children were spending in the aggregate six nights each fortnight with the Mother. This is because their ability to communicate with each other in a positive manner in relation to the children is unsatisfactory, there is significant distrust between them, and there is a significant prospect that such an arrangement would result in conflict between the parties with adverse ramifications for the children.
In fashioning orders that the children spend time with the Mother, the Court is of the view that it is also important to minimise the risk of the parties coming into conflict with each other in seeking to communicate and co-parent these children. The evidence of the family consultant was consistent with this view; she had stated that inevitably, where there are two parents involved, some communication is necessary, and if there are two parents involved in the children’s day-to-day routine, the more communication is unavoidable.
In this context, it will assist the parties in communicating with each other, in the context of co-parenting the children, that they enrol in and complete a Parenting Orders Program such as the Keeping Contact course.
Should the children spend time with the Mother as follows, there is a reasonable prospect that the children’s meaningful relationship with the Mother can be maintained and enhanced:
a)For the next 3 months, on each fortnightly Saturday for at least 2 hours supervised by the B Contact Service (the contact service) at times and dates to be offered by the contact service;
b)Thereafter for 3 months, on each fortnightly Sunday from 12pm to 5pm;
c)Thereafter for 3 months, fortnightly from 9am Saturday to 5pm Sunday;
d)Thereafter, fortnightly from after school or 3pm Friday to 5pm Sunday;
e)Such other time as the parties may agree.
Should the Mother move to within a 10km radius of the children’s respective schools and then, after spending time with the children pursuant to (a), (b), and (c) above and for at least 3 months pursuant to (d) above, the children spend time with the Mother:
a)For 12 months, fortnightly from after school or 3pm Friday to before school or 9am Monday.
b)Thereafter, fortnightly from after school or 3pm Thursday to before school or 9am Monday.
c)Such other time as the parties may agree,
there is also a reasonable prospect that the children’s meaningful relationship with the Mother can be maintained and enhanced.
Further, should the children spend time with the Mother as follows, during school holidays, there is also a reasonable prospect that the children’s meaningful relationship with the Mother can be maintained and enhanced:
a)During the short school holidays, commencing with the Term 1, 2022 school holidays, the children shall spend equal time with each parent as agreed between the parties and, failing agreement, as follows:
i)the children shall spend time with the Father for the first half and with the Mother for the second half.
b)During the long summer NSW school holidays: the children shall spend time with each parent as follows:
i)Commencing December 2022 and each even numbered year thereafter with the Mother for the first half and with the Father for the second half.
To the extent that the evidence of the family report writer is in conflict with the above views of the Court, the Court would respectfully disagree with that evidence. In this context, it is important to not overlook that prior to August 2019 the children had been living in the Mother’s primary care since 2010. Further, the Court’s above discussed proposed orders, in relation to the children beginning to spend unsupervised time with the Mother, are gradual and cautious, thus allowing the children to adequately adjust to spending increased time with the Mother. And again, it is important that the children begin to spend regular time with the Mother, increasing on a graduated basis, so as to ensure that their meaningful relationship with her can be maintained and enhanced, and the Court also refers to its discussions above in this context.
Should the Court make the Father’s or the ICL’s proposed orders, there is a real risk that the maintenance and enhancement of the children’s meaningful relationship with the Mother, in a timely fashion, will be detrimentally affected.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
During the parties’ relationship, the parties were verbally abusive of each other.
As discussed below, the Father bit the Mother’s finger during a melee in about 2009, which led to a conviction against the Father and an AVO. The Court accepts the Mother’s evidence that she has not had concerns for her safety, due to the Father’s behaviour, since the AVO was put in place.
Apart from the above incident, on the balance of probabilities, the Court finds that on occasion during the parties’ relationship each of the party’s probably proffered physical violence against the other during arguments.
On the balance of probabilities, the Court does not accept that the Father threatened to whip the child Y with a belt in relation to this child not eating his food at the Father’s residence.
When the children came into the Father’s care in September 2018 for several weeks, the Father was inappropriately verbally harsh with the child Y in relation to his eating food. The Court accepts that the Father has developed some insight into this inappropriate behaviour, and has appropriately modified his approach to the child Y in relation to his eating. He would be assisted by attending upon various courses as recommended by the family consultant.
In 2018, the Mother was smoking cannabis and methamphetamine regularly. The Mother ingested methamphetamines in October 2019 in Sydney. It is likely that a significant contributing cause to the Mother using methamphetamines in about October 2019 was the fact that the children had gone into the Father’s primary care in about August 2019.
The Mother told the Court that she used methamphetamines on the Region N regularly because she was quite isolated, she felt lonely, and she did not manage her Father’s death in 2014 well. The Mother stated that she had not obtained mental health treatment and had seen a counsellor briefly. She has never had drug counselling.
The Mother lost her driver’s licence a few years ago for a period of three months. She had been driving under the influence of methamphetamines and cannabis.
Of her own volition, and borrowing funds, the Mother undertook a chain of custody urinalysis test on 18 October 2019. The test results were negative for certain illicit and other drugs, with the Court not overlooking that the timing of this test was at the Mother’s choosing.
Pursuant to the Court’s orders of 16 December 2019, the Mother undertook a hair follicle test on 20 December 2019 and returned a clean result for certain illicit and other drugs.
The Mother was ill and admitted to hospital in about late 2019 (suffering, inter alia, heart failure at about this time) and later in early January 2020 (having suffered a mild heart attack at about this time). These illnesses related to the Mother’s disease, being an autoimmune disorder that causes hypothyroidism. The Court accepts the Mother’s evidence that she holds serious concerns that if she takes (illicit) drugs it will put her health at serious risk considering her heart issues.
The Mother’s illicit drug use probably contributed to the Mother’s deteriorating financial circumstances whilst living with the children on the Region N, which led to the Mother losing possession of her residence at Suburb M, and resulting in the Mother and children’s accommodation position becoming unstable for a significant period during the latter part of 2018 and in 2019.
The Mother’s illicit drug use and related parlous financial circumstances including lack of reliable accommodation probably contributed to the children missing significant time from school.
The Court is not satisfied that the Mother has complete insight into the detrimental effects upon her parenting capacity when affected by illicit drugs, whilst acknowledging that the Mother conceded that her financial circumstances were probably detrimentally affected by her illicit drug use. Further, whilst the Mother has some insight as to why she has resorted to illicit drug use in the past, the Court is not satisfied that she has fully considered helpful strategies to assist her in the future from resorting to illicit drugs. Drug counselling would likely assist the Mother in these respects.
In the view of the Court, there exists an unacceptable risk of harm posed to the children (in particular, physical and/or psychological harm through neglect) in presently spending unsupervised time with the Mother. This risk arises from Mother’s past illicit drug use and related affects. This risk can be minimised and addressed by:
a)The children’s time with the Mother continuing to be supervised for the next 3 months;
b)Thereafter, the children’s time with the mother proceeding gradually and cautiously;
c)The ICL being permitted to request 2 hair follicle tests of the Mother over a period of six months;
d)The ICL being permitted to return the proceedings to the Court’s list should any hair follicle test of the Mother be returned positive for illicit drugs;
e)The Mother presently obtaining drug counselling from a psychologist with experience in drug addiction counselling, with the ICL to approve the selection of such psychologist;
f)The parents be prohibited from consuming any illegal drugs 24 hours prior to and during the children being in their care;
g)The Mother is to immediately remove the children from the presence of any persons she perceives to be affected by or consuming illegal drugs;
h)The Mother be restrained from allowing any person who is using or is affected by illicit drugs to be present and/or to reside in her residential premises, during times that she has the children in her care.
i)The ICL remain appointed for a period of 12 months from the date of these orders.
Again, being cautious and conservative, as discussed above under the meaningful relationship primary consideration, the children’s proposed time with the mother will begin with an initial three month period of supervised time (during which time the ICL can request a hair follicle test of the mother), then daytime time, and progress gradually. In this context, the Court takes into account, inter alia, the Mother’s negative urinalysis test on 18 October 2019. The Court takes into account that pursuant to the Court’s Orders of 16 December 2019, the Mother undertook a hair follicle test on 20 December 2019 and returned a clean result for certain illicit and other drugs. The Court takes into account the Mother’s hospitalisations in late 2019 and January 2020 and her evidence that she holds serious concerns that if she takes (illicit) drugs it will put her health at serious risk considering her heart issues.
The ICL’s proposed orders relating to the mother spending greater or lesser time with the children depending on whether persons are living with her are, in the view of the court, unreasonably wide and unnecessary to adequately protect the children. There is force to the mother’s submissions in this context. The Court is of the view that the above proposed protective orders, including restraining orders against the mother, will minimise the risk of the children being exposed to persons using or affected by illicit drugs. The Court is of the view that it is likely that the Mother will comply with such proposed protective orders including restraining orders.
The Court should state that the Court’s proposed Order above, in respect to the Mother obtaining drug counselling, is a protective Order, as discussed above, and as such does not offend the decision in L & T [1999] FamCA 1699.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
At the Child Inclusive Conference, both children expressed a wish to remain living in the Father’s primary care and to spend regular time with the Mother.
The Court would give some weight to the children’s views.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration. The children also enjoy positive relationships with members of the maternal and paternal extended families.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Court refers to its discussion below under s 60CC(3)(f).
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Historically, when the children were in the Mother’s primary care, the Father paid some child support but did not otherwise financially assist the Mother in respect to the children. Presently, the Mother is paying child support of $35 per fortnight.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the meaningful relationship primary consideration, particularly relating to the importance of the children spending time with the Mother.
Since the children have been living in the Father’s primary care since about August 2019, they have developed well. The children have enjoyed spending supervised time with the Mother, and wish to spend regular time with her.
Should the children spend time with the Mother, as discussed above under the meaningful relationship primary consideration, there is a significant prospect that the children’s meaningful relationship with the Father should not be detrimentally affected.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The Father lives at Suburb D with the children. The Mother lives at Suburb V. She is desirous of moving residence closer to the Father’s residence and/or the children’s schools. The Court’s proposals, as discussed above under the meaningful relationship primary consideration, in relation to the children spending increased overnight time with the Mother, should she move within 10 km of the children’s schools, reflect the practicality of the parties facilitating such increased time in circumstances where the mother is living relatively closer to the children’s schools.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Following the Court making parenting orders in October 2018, the Mother did not sufficiently encourage the children to spend time with the Father.
The Court finds that on occasion during the first half of 2020 the Father did not facilitate the children having telephone time with the Mother. The Court accepts that the children, or one of them, were on occasion expressing a reluctance to speak to the Mother. The Court accepts that the Father had formed the view that he would not force the children to speak to the Mother if they did not wish to speak with her. Nevertheless, the Court finds that the Father and his wife did not encourage the children to speak to the Mother when they expressed a wish not to speak with her. Further, the Court finds that the Father did not facilitate supervised video conferencing between the children and the Mother in a timely fashion following the contact centre writing to him in late March 2020.
It will be in the best interests of the children to make the Mother’s proposed Order relating to the parties facilitating and encouraging the children communicating with each parent at such times as the children so wish. Such an order will assist in the children maintaining a meaningful relationship with each parent.
Subject to the Court’s discussions above and under the need to protect primary consideration, both parties have the capacity to provide for the children’s emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
Not applicable.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
See above under s 60CC(3)(f).
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
In about late 2009 the parties had an argument in relation to the child X. At one point, the Father asked for his cigarettes back from the Mother. The Mother had taken the Father’s cigarettes without his permission. The Father tried to grab the cigarettes out of her hand and when the Mother resisted, the Father bit her hand. The Mother went to the police, and the Father was charged with assault occasioning actual bodily harm. The Father made full admissions to the police. The Father was eventually fined and a final AVO was made against him.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Father’s parenting proposals carry the significant risk of further proceedings between the parties because after a period of 12 months of supervised time between the children and the Mother, the Father proposes that the parties attend “Family Dispute Resolution to discuss the introduction of regular unsupervised time by reference to the children’s best interests.” The Court would have no confidence that the parties could reach agreement in relation to such regular unsupervised time in a timely fashion.
The ICL’s proposals providing, inter alia, for at least 6 months of further supervised time between the children and the Mother, carries a risk of further proceedings between the parties because of the significant risk that the children’s meaningful relationship with the Mother will be detrimentally affected if they have to spend such supervised time with her, in circumstances where they have not spent unsupervised time with the Mother since about August 2019.
m) Any other fact or circumstance that the Court thinks is relevant
In early 2006, the Father was convicted of contravening an ADVO, in relation to a previous partner, and was placed on a bond; conditions of the bond included that the Father obey all reasonable directions to counselling and educational development, including drug and alcohol room rehabilitations, and anger management. At trial, the Father conceded that at that time he had an issue with anger management. He had obtained counselling for anger management, and had completed two courses of anger management. The Father referred to a child of a previous relationship, a boy DD. The Father had grabbed this child by the arm in about 2006 when he didn’t say hello to the Father’s new girlfriend. The Father conceded that his parenting style had been aggressive in the past but it was not any more. The Father stated that he is now significantly more calmer that he used to be.
At the Child Inclusive Conference held on 12 February 2020, the Father told the family consultant that he becomes frustrated with the children on occasion, and that at times he is “aggressive” in manner, but that he would not physically hurt the children. He stated that he is able to calm himself if he becomes frustrated with the children, and talk to them about issues, and consider what is behind their behaviours.
The family consultant had stated in the Child Inclusive Conference Memorandum, that, as recommended in the family report, a parenting course such as Tuning into Kids, or Tuning into Teens may assist the Father in his efforts to build on his parenting role with the children, and support them with their emotions. It will be the best interests of the children of the Father complete such a course.
Parental responsibility
The Father and ICL seek an order for sole parental responsibility, whereas the Mother seeks an order for equal shared parental responsibility.
If the Court were to make an order that the Father have sole parental responsibility in relation to the children, that would entail the Father having the sole entitlement to make major decisions affecting the child’s care welfare and development, without reference to the Mother. In this context the Court observes that the children are only aged 10 and 12 years.
In Lansa & Clovelly [2010] FamCA 80, Murphy J discussed the statutory framework under the Act in relation to the issue of parental responsibility.
136. The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
137. Parental responsibility can, though, be altered by the making of a parenting order by the Court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
138. But, when a Court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
139. The statutory presumption just referred to is rebuttable in circumstances where the Court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the Court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
140. No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a Court determines what is in a child’s best interests”. It is, then, again called into use in this context.
141. The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
142. Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
143. “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
144. Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
145. Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
The presumption of equal shared parental responsibility is probably rebutted by the Father’s conceded family violence in 2009; s 61DA(2)(b) of the Act. It is open to the Court to nevertheless determine, should it be in the best interests of the child, to order equal shared parental responsibility.
The youngest child has about 8 years left until reaching adulthood. The eldest child has about 6 years. It is a very serious matter to exclude a parent from decision making in respect to major decisions affecting the child. In Lansa & Clovelly [2010] FamCA 80, Murphy J stated:
148. The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
149. If that is the meaning of the expression, then, in my view, a Court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
Post separation, the parties have not communicated well verbally. Presently, there is a significant level of distrust by the Father towards the Mother.
The Father told the family consultant that he recently completed a Focus on Kids course, and that he felt it would be useful for the parties to adopt a business structure communication without any emotional discussions. He stated that email would be the best way for the parties to communicate.
The Mother expressed a desire to communicate effectively with the Father. The family consultant had stated that the completion of a parenting orders program, may assist the parties in developing productive communication and reducing parental conflict. It will be in the best interests of the children that the parties so complete a parenting orders program.
The Court is of the view that there is a real prospect that the parties will be able reach agreement in relation to major decisions affecting the child’s care, welfare and development, in a timely fashion and without significant conflict, particularly if they communicate by way of email, and they complete a parenting orders program. Again, prospectively, at this time, there would appear to be limited major decisions to be made for the children; a major decision will need to be made for the youngest child Y’s high school, but he is only now in Year 4.
The children should have the benefit of having each parent making a contribution into major decisions affecting them.
It will be in the best interests of the children that the parties have equal shared parental responsibility for them.
As to equal time, no party sought such an order. In any event, it will not be in the best interests of the children that they be subject to an equal time parenting regime, and in this regard the Court refers to its discussions above under the primary and additional considerations of s60CC of the Act.
As to substantial and significant time, pursuant to the Court’s proposed time-with Orders, discussed above under the meaningful relationship primary consideration, noting the Court’s proposed protective Orders discussed above under the need to protect primary consideration, ultimately, should the mother move to within 10km of the children’s schools, the child will spend time with the Mother probably constituting substantial and significant time with the Mother under s65DAA(3) of the Act, and such time will be reasonably practicable.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1) The parties shall have equal shared parental responsibility for all long-term major decisions associated with the care, welfare and development of the children X born in 2008, and Y born in 2010 (the children).
(2) The children shall spend time with the Mother as follows:
(a) For the next 3 months, on each fortnightly Saturday for at least 2 hours supervised by the B Contact Service (the contact service) at times and dates to be offered by the contact service;
(b) Thereafter for 3 months, on each fortnightly Sunday from 12pm to 5pm;
(c) Thereafter for 3 months, fortnightly from 9am Saturday to 5pm Sunday;
(d) Thereafter, fortnightly from after school or 3pm Friday to 5pm Sunday;
(e) Such other time as the parties may agree.
(3) Should the Mother move to within a 10km radius of the children’s respective schools then, after spending time with the children pursuant to Order 2 (a), (b), and (c) above and for at least 3 months pursuant to (d) above, the children spend time with the Mother:
(a) For 12 months, fortnightly from after school or 3pm Friday to before school or 9am Monday;
(b) Thereafter, fortnightly from after school or 3pm Thursday to before school or 9am Monday;
(c) Such other time as the parties may agree.
(4) The children shall spend time with the Mother, during school holidays, in the absence of agreement:
(a) During the short school holidays, commencing with the Term 1, 2022 school holidays, the children shall spend equal time with each parent as agreed between the parties and, failing agreement, as follows:
(i) the children shall spend time with the Father for the first half and with the Mother for the second half.
(b) During the long summer NSW school holidays, the children shall spend time with each parent as follows:
(i) Commencing December 2022 and each even numbered year thereafter with the Mother for the first half and with the Father for the second half.
(5) Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with their Father from 9.00am to 5.00pm on Father’s Day, unless they are already in his care.
(6) Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the children spend time with their Mother from 9.00am to 5.00pm on Mother’s Day, unless they are already in her care.
(7) Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties, the children shall spend time with the non-resident parent on each of their respective birthdays as follows:
(a) During non-school days: From 11:00AM until 4:00PM.
(b) During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
(8) Notwithstanding anything else contained within these Orders and unless otherwise agreed between the parties, the children shall spend time with the Mother on the Mother’s birthday (unless already in the Mother’s care) for a minimum of five (5) hours at a time as agreed between the parties and, in default of agreement, as follows:
(a) During non-school days: From 11:00AM until 4:00PM.
(b) During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
(9) Notwithstanding anything else contained within these Orders and unless otherwise agreed between the parties, the children shall spend time with the Father on the Father’s birthday (unless already in the Father’s care) for a minimum of five (5) hours at a time as agreed between the parties and, in default of agreement, as follows:
(a) During non-school days: From 11:00AM until 4:00PM.
(b) During school days: From the conclusion of school (or 3:00PM) until 8:00PM.
(10) For Christmas 2020, the children shall spend time with the mother for at least 3 hours on any one of Christmas Eve, Christmas Day, or Boxing Day, at the selection of the mother, and provided the mother informs the father of her selection at least 14 days prior to such days. In the absence of agreement between the parties, such 3 hour period (or longer period if agreed between the parties) shall occur between 3 PM and 6 PM.
(11) For Christmas 2021, and Christmas periods thereafter, the children shall spend time with the mother from 12 PM Christmas Eve until 12 PM Christmas Day in odd numbered years and from 12 PM Christmas Day until 12 PM Boxing Day in even numbered years.
(12) Changeover shall occur at locations as agreed between the parties, and in default of agreement, changeover shall occur as follows:
(a) On school days:
The parent with whom the children are to spend time will collect the children from their respective schools. If a parent’s time concludes outside of school hours, changeover shall otherwise occur at Suburb C Train Station.
(b) On non-school days:
The parent with whom the children are to spend time shall collect the children from Suburb C Train Station.
(13) That the children may communicate with each parent at such time as the children so wish and the other party shall facilitate and encourage such communication by telephone, in writing or by other electronic means including, but not limited to, e-mail, Skype or FaceTime.
(14) For the purposes of the above Order, each parent shall facilitate such communication by ensuring that the children are available to talk to the other with privacy and without interference.
(15) Each party is hereby permitted to attend any school event or function to which parents normally attend including, but not limited to, the first day of school, open days, parent/teacher interviews, parent days, assemblies, concerts and the like even when the children are not in his/her care.
(16) Each party is entitled to attend all extra-curricular events involving the children including sporting, music performances, eisteddfods and all other extra-curricular fixtures and performances, and the parent who has the child in their care of the day of such activity will be responsible for the child’s day to day care at such event and the child’s transportation to and from that event.
(17) Each parent is restrained from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.
(18) That the Father be permitted to enrol the children at D Public School and E High School.
(19) That each parent keep the other parent informed of:
(a) Their residential address, an email address and a contact telephone number;
(b) The details of any other person residing in the same house as the children;
(c) Any significant injury or illness suffered by the children, or either of them, and details of all subsequent medical treatment given to the children, or either of them; and
(d) The schools the children are attending and any extra-curricular activities in which the children are involved.
(20) That each parent be permitted to communicate with the children's schools and to request and receive copies of all school reports, notices, newsletters, bulletins, applications for school photographs and other correspondence from the children's schools.
(21) That the Father be permitted to provide the Principals of the children's schools with a copy of these Orders within 28 days of the date of the Orders and will authorise the Principals to facilitate these Orders.
(22) That Father be permitted to travel outside the Commonwealth of Australia with the children provided that the Father provide to the Mother no less than 28 days' notice of any intended overseas travel.
(23) That the Father have sole responsibility for giving consent and making arrangements for the issue of Australian passports in the names of the children.
(24) The Father shall, within 6 weeks, enrol in and thereafter complete either the Tuning into Kids, or Tuning into Teens course.
(25) The parents shall, within 21 days, enrol in and thereafter complete a Parenting Orders Program, such as the Keeping Contact course.
(26) The ICL shall be permitted to request 2 hair follicle tests of the Mother over a period of six months from the date of these Orders. Following each request the Mother shall submit herself for hair testing and provide such hair samples as directed by The Drug Detection Agency for the purposes of analysis of drug use in relation to non-prescription drugs including but not limited to:
(a) Methadone Metabolite,
(b) Opiates,
(c) Amphetamine type substances,
(d) Benzodiazepines,
(e) Cannabinoids,
(f) Cocaine Metabolite,
(g) Crystal Methamphetamines,
(h) Barbiturates,
(i) Buprenorphine, and;
(j) Tetrahydrocannabinol
(27) The ICL shall have liberty to relist the proceedings on 7 days’ notice should any hair follicle test of the Mother be returned positive for illicit drugs.
(28) That within 14 days from the date of the making of these orders, the Mother is to attend upon a psychologist with experience in drug addiction counselling, as approved by the ICL, and comply with the following;
(a) The Mother is to attend all appointments as scheduled by the psychologist;
(b) The Mother is to follow all recommendations given by the psychologist;
(c) The Mother is to provide correspondence from the Psychologist to the ICL and to the Father’s solicitor stating compliance with orders (a) and (b) above within 3 months; and
(d) The Mother is to be granted leave to provide a copy of the family report of Ms F dated 15 May 2019 and child inclusive conference memorandum dated 12 February 2020 to her psychologist.
(29) The parents shall be restrained from consuming any illegal drugs 24 hours prior to and during the children being in their care.
(30) The Mother shall immediately remove the children from the presence of any persons she perceives to be affected by or consuming illegal drugs.
(31) The parents shall be restrained from consuming any alcohol above the legal driving limit of 0.05 when the children are in their care.
(32) The Mother be restrained from allowing any person who is using or is affected by illicit drugs to be present and/or to reside in her residential premises, during times that she has the children in her care.
(33) The ICL shall remain appointed for a period of 12 months from the date of these orders.
(34) Leave to the ICL to relist the proceedings on 7 days’ notice in the event of any significant difficulty arising relating to the implementation of the above orders.
I certify that the preceding two hundred and thirty three (233) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 8 September 2020
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