ELLERY and ORMONDE

[2015] FCWAM 166

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: ELLERY and ORMONDE [2015] FCWAM 166

CORAM: KAESER M

HEARD: 6 JULY 2015

DELIVERED : 4 AUGUST 2015

FILE NO/S: PTW 4465 of 2013

BETWEEN: MR ELLERY

Applicant

AND

MS ORMONDE
Respondent

Catchwords:

Child related proceedings; interim orders; risk issues raised regarding mother’s care of the children; insufficient evidence to warrant change to existing orders.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms N Croft

Respondent: Mr W Meredith

Solicitors:

Applicant: Carr & Co

Respondent: William Llewellyn Meredith

Case(s) referred to in judgment(s):

Cox v Pedrana [2013] FamCAFC 48

Goode & Goode (2006) FLC 93-286

McCall & Clark (2009) FLC 93-405

MRR v GRR (2010) FLC 93-424

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1This matter was previously before me in a Bunbury circuit for a conciliation conference on 28 May 2015. Given the parties intended to raise issues and file and serve documents requiring a hearing, the matter was adjourned to a hearing before me in Perth on 6 July 2015. The hearing proceeded on that date and I reserved my judgment to be delivered on 4 August 2015.

Background of the parties

2The father works on a two week on/two week off then two week on/four weeks off FIFO roster. The parties started living together in 2008. They have two children, [Child A] born [in] 2009 and [Child B] born [in] 2012.

3They separated on 20 January 2012. The children initially lived with the mother. The father removed the children from the mother’s care on 28 July 2013, given his concerns that they were being subjected to child abuse and family violence in her care.

4The previous orders made on 4 August 2014 provide for the children to spend time with the mother each Monday from 9.00 am to Tuesday 3.00 pm and six hours on one other day during the week. Further orders were made in November 2014 which allowed the children to spend time with the mother when the father was at work. The children therefore have been spending extended periods in the mother’s care when the father was working away for two weeks at a time.

5Since November 2014, the children have enjoyed a shared‑care regime where they live with the father when he is not at work and with the mother when he is at work.

6The Court is required to determine the interim application and response of the parties. The father filed a Form 2 application on 27 May 2015 and in that application sought the following orders on an interim basis:

Parental responsibility

1.The applicant father have sole parental responsibility for the children, namely, [Child A] born [in] 2009 and [Child B] born [in] 2012 (“the children”).

Suspension of previous orders

2.Paragraphs 1 and 3 of the minute of consent orders pronounced on 3 November 2014 be hereby suspended.

Live with

3.The children live with the applicant father when the applicant father is rostered off work.

4.The children live with the applicant father’s sister, [Ms Ellery], when the applicant father is at work.

Spend time with

5.The respondent mother spend supervised time with the children for one hour each Wednesday at the playground of the [Coastal Town M] boat ramp from 3.30 pm until 4.30 pm.

6.In the event the respondent mother is unable to spend time with the children at the playground at the [Coastal Town M] boat ramp due to poor weather, the respondent mother shall spend the supervised time referred to in paragraph 5 at the [Coastal Town M] public library.

7.[Ms W] shall supervise the respondent mother’s time with the children each Wednesday.

8.[Ms W] shall deliver the children to the [Coastal Town M] boat ramp (or the [Coastal Town M] public library) each Wednesday at 3.30 pm and shall deliver the children to the Good Start Early Learning Centre, [Coastal Town M] at the conclusion of the respondent mother’s time with the children.

9.[Ms W] shall be paid $50 per hour to supervise the respondent mother’s time with the children each Wednesday, the costs of which will be borne equally by the parties.

Hair follicle drug testing

10.The respondent mother shall undergo a hair follicle drug test forthwith.

11.The respondent mother shall undergo a further hair follicle drug test at the written request (text or email) of the applicant father on or before 31 December 2015.

12.The applicant father shall pay the costs of the hair follicle drug test(s).

Procedural

13.The parties do all acts and things and give all consents and execute all documents necessary to give effect to these orders.

14.The parties have liberty to apply in relation to solely [sic] the implementation of these orders.

7In her Form 2A response filed on 2 July 2015 the mother sought the following interim orders:

1.The orders of 3 November 2015 [sic] be enforced and the applicant deliver up the children, [Child A] born [in] 2009 and [Child B] born [in] 2012, to spend time with the children when he is at work.

2.When the applicant is home for more than two consecutive weeks, then the respondent shall spend time with the children each alternate fortnight during that period.

3.When the applicant is at work, the respondent shall spend time with the children until the applicant returns.

Father’s case

8The father says that the Court should act protectively to provide for supervised time between the mother and the children and should also ensure that an Independent Children’s Lawyer is appointed and then review the ongoing interim arrangements once the Independent Children’s Lawyer has had an opportunity to conduct some investigations.

9Counsel for the father submitted that the main concerns of the father were outlined in his affidavit at paragraphs 20, 29 and 33. These paragraphs relate to the concerning information received from a [Ms M] (details will be discussed shortly) and from a [Mr N] (details to be discussed) and from the owner of the [Coastal Town M Caravan and Holiday Park] (details to be discussed). Information set out in those paragraphs and corroborated by the affidavit of [Ms M] provide ample reasons as to why the father retained the children in his care recently. Given that the orders provide that the children spend time with the mother when the father is working, he has recently decided to cease working in order to not breach the current orders. I therefore reserved my judgment to as early a date as possible to allow the father to return to work and for the children to return to a proper routine.

10The father submits that the mother’s response material attacks the witnesses or some of them, but does not specifically deny the detailed allegations made (with one or two exceptions). There are certainly some denials contained in the mother’s material.

11There are many concerning elements of the evidence before the Court. The father’s actions (as mentioned) were prompted by information received from three other people. The Court may question the veracity of some of that information given that some of it is from a former best friend. There may well be some reason as to why witnesses give certain evidence other than because the evidence is entirely accurate, but at this stage no proper explanation has been offered by the mother as to why these people might be saying things that are not true.

12The Court acknowledges that on an interim basis it is difficult to make determinations of factual issues when those facts are disputed. That is, unless there is some reasonable corroborative evidence of those facts. In this case there is some independent evidence provided by the witnesses.

Mother’s case

13In essence, the mother says that:

(a)the previous arrangements were working well;

(b)the father had no issue with those arrangements until various people relayed information to him;

(c)that the information provided to him is either denied, unreliable or patently false;

(d)she acknowledges having a history of mental health issues, but appears to blame them (at least in part) on the father’s behaviour and his attitude towards her;

(e)that she has a good and loving relationship with the children and takes good care of them;

(f)that she acknowledges ongoing marijuana use, but denies any impact on her parenting and otherwise denies excessive alcohol consumption.

The evidence

14By way of background, on 19 May 2014 the Department for Child Protection and Family Support provided a letter in response to the father’s Form 4 notice. In that the mother acknowledged her previous methamphetamine use. The Department found that if she was using methamphetamines again the children would be at risk of harm. The Department recommended that the mother’s drug use be determined before altering the current arrangements.

15In more recent times:

(a)on 6 May 2015 the father received a phone call from a friend who relayed information she had been told about the mother from [Ms M]. The father then spoke to [Ms M] who confirmed at [20] of the father’s affidavit that:

i. she had received text messages from [Ms Ormonde] stating “I should not be a mother”; “I can’t do this anymore”; and “I’m losing it”;

ii. she had personally seen [Ms Ormonde] smoking methamphetamine;

iii. she regularly sees [Ms Ormonde] smoke marijuana in the presence of [Child A] and [Child B], sometimes in her caravan with the door and windows closed;

iv. she had received text messages from [Ms Ormonde] in which she stated she did not want to undergo a drug urinalysis test as requested by me as she would “lose the girls”;

v. she regularly sees [Ms Ormonde] drink excessive amounts of alcohol while [Child A] and [Child B] are in her care;

vi. [Ms Ormonde] allows [Child A] and [Child B] to roam around the [Coastal Town M Caravan Park] unsupervised for extended periods of time;

vii. [Ms Ormonde] regularly asks her to wash and iron [Child A] and [Child B’s] clothes, take [Child A] to and from school and babysit Child A and Child B (sometimes overnight); and

viii. [Ms Ormonde] frequently asks her for money.

16Ms M filed an affidavit in these proceedings confirming the above evidence.

17On 12 May 2015 Ms M told the father (at [22] of the father’s affidavit):

That [Ms Ormonde] had called her that morning and asked her to take [Child A] to school. [Ms M] informed me that when she arrived at [Ms Ormonde’s] caravan to collect [Child A], [Ms Ormonde] was “losing it”, was curled in a ball on the floor and kept stating she “wants to die” and she “can’t do this”. [Ms M] informed me that both [Child A] and [Child B] were present and were very distressed by [Ms Ormonde’s] behaviour. [Ms M] said that she proceeded to take [Child A] to school, as requested by [Ms Ormonde], however, she was unable to take [Child B] to day-care as the day-care do not know [Ms M] and [Ms M] does not have the required authorisation.

18Given that the mother’s drug use is a significant issue, drug urinalysis testing has been ordered. On 10 May 2015 the father requested a test; the mother did not attend. Ms M received texts from the mother on 11 May 2015 saying, “I can’t have that in my wee or I’ll lose the girls”. The mother has previously failed to provide clean test results. There were four such tests in February, March, June and August 2014.

19On 15 May 2015 the father received a call from the owner of the caravan park at which the mother resides. The concerns raised by that person were (see [33] of the father’s affidavit), namely:

(b)she had seen [Child A] and [Child B] wandering around the caravan park by themselves;

(c)[Ms Ormonde] has been spending time with well-known drug users at the caravan park; and

(d)[Ms Ormonde] asked the owner of the caravan park for nappies and milk as she had no money.

20On 17 May 2015 the father received information from a Mr N who owned the property in which the mother had lived with the children (in a granny flat). He evicted her in March 2015 because of the following concerns (set out at [29] of the father’s affidavit):

(a)He often overheard [Ms Ormonde] trying to source drugs on the phone;

(b)He saw a well-known drug dealer come to the house looking for [Ms Ormonde], however [Ms Ormonde] hid;

(c)His neighbours had contacted the police on a number of occasions due to [Ms Ormonde’s] disturbing behaviour. For example, [Ms Ormonde] smashed a hole in a window at [Mr N’s] house. [Ms Ormonde] would also be up all hours of the night playing loud music. On both of these occasions, the children were in her care; and

(d)[Ms Ormonde] was often behind in rent.

21After being evicted from Mr N’s residence the mother moved to the Coastal Town M Caravan Park.

22Given the drug testing concerns, the father has proposed that the mother undergo hair testing and that he pay the costs. In my view, that is a sensible suggestion.

23Ms M’s affidavit goes well beyond the information initially provided to the father. Whilst it is not necessary to set out in full the various allegations made, they are contained in paragraphs [13], [16], [18], [19], [21], [23], [24], [25], [18], [19], [39], [41] and [43]. Most that relate to text messages have been corroborated by providing the actual text messages. In my view, [23] is a particularly disturbing allegation that Ms M saw Ms Ormonde use methamphetamine on 26 March 2015. She describes in detail how that drug was taken and she notes that the children were not present.

24The mother filed her affidavit on 2 July 2015. In it she said (relevantly):

(a)At [2]: The history of this matter is that I had serious mental issues and became involved with the wrong people in 2013 and the applicant withheld the children at that time.

(b)At [5]: I have always been a somewhat stranded United States citizen who has suffered from a lack of family support due to distance and separation.

(c)At [7]: The mental health issues I developed are constantly inflamed by the belligerent and sometimes malicious behaviour. He shows signs at times of being on the verge of losing his temper physically and he harbours much angst and self-loathing.

(d)At [19]: There have been criticisms within the affidavit materials [sic] that I have seen of my parenting where it is said that the children are “running around the caravan park”. However, the caravans are in a big loop formation and I so [sic] allow the children a little freedom provided that they do not go beyond my field of view.

(e)At [28]: I feel vilified within the town and I know full well that the [Ellerys] have smeared and will continue to smear my name, characterising me as a junkie, a drug addict and a bad mother.

25The mother answers the various allegations raised by Ms M by saying that they used to be best friends; that they helped each other out; that Ms M had chronic mental health issues and illicit drug use issues that the mother helped her with; and that Ms M takes prescribed Dexamphetamine and Prozac.

26The mother said in relation to some of the texts such as “I shouldn’t be a mother” that these were the kind of insecure things that each of them said to each other within the confines of a close friendship. Interestingly, she flatly denies at [61] Ms M’ allegation that she saw the mother smoke methamphetamine and described it as “an outright lie”. She says, “[Child A] has never witnessed me smoking methamphetamine”. She does not dispute smoking methamphetamine in recent times; just that Ms M did not see her do it.

27At [62], she denied smoking marijuana in the presence of the children although she concedes that she does smoke on a regular basis.

28At [74] she claims that her use of marijuana was medically scripted. Whilst not stating this, I accept counsel for the father’s submission that this must have been when she was living overseas. This is not possible in any Australian jurisdiction.

29The mother also relied upon a supportive affidavit of [Mr McB] who is a close friend. Some of his evidence (as with some other witnesses) contained hearsay evidence which was of no evidentiary value. An example is him referring to what is “known around town”.

30The upshot of the father’s actions in retaining the children in his care is that the mother has not seen the children for a period of 33 days up to 30 June 2015 when the mother swore her affidavit. Since then a further five weeks has passed to the date these reasons will be delivered. That has had a financial impact in relation to her parenting payments.

Conclusions in relation to the evidence

31The mother’s evidence shows signs of a lack of maturity and responsibility for her own actions. She blamed her mental health issues partly on the father’s behaviour. She also blamed her previous best friend for getting her drunk. At [76] she blamed her friend for putting vodka in her drinks. She says, “I told her I couldn’t handle vodka, but she kept putting it in”. The other obvious option for the mother was to take responsibility for herself and simply not drink the drinks put in front of her.

32The mother does, however, acknowledge receiving ongoing cognitive behavioural therapy and is working on coping strategies. The mental health practitioners assisting her have provided reports which were supportive and positive. The mother provided a recent drug test which was not random, but in any event showed the presence of marijuana and benzodiazepines. It did not show any methamphetamine.

Principals of law

33Children’s proceedings are dealt with in Part 5 of the Act. In deciding whether to make a parenting order, I must treat the best interests of the child as the paramount consideration.

34As the Full Court in Goode & Goode (2006) FLC 93-286 said at [72]:

In our view, it can be fairly said that there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

35As the High Court of Australia emphasised in MRR v GRR (2010) FLC 93-424 and as the Full Court reemphasised in Cox v Pedrana [2013] FamCAFC 48 the legislation (in s 70A) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

36Section 70A(2) provides that:

the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in-

(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)family violence.

37Section 70A(4) provides that:

the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

38The Court therefore clearly must apply the presumption unless it does not apply pursuant to s 70A(2) or is rebutted pursuant to s 70A(4).

39I have also had regard to the objects of the Act and the principles which underlie those objects. They provide the context in which the above considerations are to be examined and weighed. They are set out below.

40Section 66(1) provides:

(1)The objects of this part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

41Section 66(2) provides:

(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

42To assess what is in the child’s best interests, I must consider the “primary” and “additional” considerations set out in s 66C(2) and (3).

Primary considerations

43The primary considerations are:

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

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

The benefit to the child of having a meaningful relationship with both of the child's parents

44It is clear that meaningful means a relationship that is important, significant and valuable to the child. The Full Court in McCall & Clark (2009) FLC 93-405 made this finding and set out what it considered to be three possible interpretations of this subsection:

(a) One interpretation is that the legislation requires a Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

(b) a second interpretation is that the legislature intended that a Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

(c) the third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

45The Full Court concluded that the prospective approach was preferred, but depending on the circumstances of the case, the present relationship approach may also be relevant. The Court accepted that if only the present relationship approach were followed, the Court would be limited in making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of the trial.

46I have no doubt that these children should enjoy a meaningful relationship with both of their parents.

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

47Amendments were made to the definitions of family violence and abuse which took effect in relation to all cases that commence on or after 5 October 2013. This matter was commenced prior to that date so the previous version of the definition of family violence applies to this matter.

48The definition of abuse that applies to this matter is as follows:

Abuse, in relation to a child, means:

(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first mentioned person or the other person, and where there is unequal power in the relationship between the child and the first mentioned person.

Family violence is defined as:

Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

49The note to that provision provides that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”

50I am not satisfied that the recent allegations fall within the above definitions or that there is any need to make orders that will protect these children from physical or psychological harm by being in the mother’s care.

Additional considerations

51I propose to limit my discussion of these considerations to only those factors that apply to this matter.

52The children generally have a good relationship with both of their parents and have been spending significant amounts of time in each parent’s care until recently.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

53In my view, the children are likely to be missing their mother having not spent any time with her for a significant period. In my view, there will be an ongoing adverse effect on the children if that is to continue. I am not satisfied that the limited supervision proposed by the father would be sufficient to alleviate that likely ongoing effect.

54Each parent has shown that they are capable of caring for these children. Despite the various allegations raised against the mother, there is no evidence of any actual harm to the children.

55Before I make a significant change to the current orders, I must be satisfied that there is sufficient evidence to cause the Court concern about some risk to the children in the mother’s care if the current orders were to continue. Notwithstanding the general denials by the mother, there is clearly some disturbing evidence provided by the father and his witnesses. The Court cannot ignore that evidence on an interim basis even though some of it is contested. The Court’s “main brief” is to ensure that children are safe. This is in accordance with the abovementioned principles and that when considering the primary considerations the Court must give more weight to the need to protect children rather than the need to maintain ongoing meaningful relationships with both parents.

Conclusions

56When the Court carefully examines the numerous allegations made against the mother and breaks them down, the following conclusions are reached:

(a)None of the allegations relate to any actual harm to the children;

(b)None relate to any untoward behaviour directly to the children;

(c)They relate to expressions of self-doubt which the mother acknowledges and is receiving treatment for;

(d)They relate to alleged drug use which is denied, but can be clarified by hair testing;

(e)They relate to excessive alcohol consumption which is mostly denied;

(f)They relate to issues to do with rent payments and tenancy issues which do not impact on the mother’s parenting.

57On an interim basis the Court should be wary of acting on unsubstantiated allegations which are denied, but must also balance that risk with the need to act protectively towards children.

58In this case, I am not satisfied that all of the separate allegations add up sufficiently to warrant a change in the current orders on an interim basis. My view is that the presumption that it is in the best interests of these children for their parents to have equal shared parental responsibility applies and is not otherwise rebutted by the evidence. I must therefore consider equal time and substantial and significant time.

59The mother’s drug use, or lack thereof, however, needs to be verified. Hair testing is an appropriate vehicle to obtain an historical set of results. Ongoing hair testing should assist after the initial hair test results are obtained.

60I am not presently satisfied that the mother’s time needs to be supervised. It is clear from the evidence provided by the father that the children are readily observable in the community, especially by people at the Coastal Town M Caravan Park. There may well be further information provided to the father in the event that further concerns are raised about the mother’s behaviour or the children’s behaviour.

61On an interim basis, there is no need to make orders regarding parental responsibility. Whilst I understand the father’s actions in retaining the children given the concerns raised by others, in my view, the children should immediately return to the previous arrangements. The children need and will benefit from ongoing care by both of their parents. The mother is clearly on notice by the father’s actions and the children no doubt will be closely monitored in the future.

62I intend to reinstate the earlier arrangements. In my view, that represents an appropriate amount of time and is a substantial and significant time arrangement. I will hear from counsel as to when the father will return to work and therefore when the children will next be placed in the mother’s care. In my view, that should occur soon.

Orders

1.The respondent undergo a hair follicle drug test forthwith.

2.The respondent undergo a further hair follicle drug test at the written request (text or email) of the applicant on or before 31 December 2015.

3.The applicant pay the costs of the hair follicle drug tests.

4.Until further order of the Court, the parenting orders made on 3 November 2014 are to be reinstated with effect immediately.

5.The interim applications before the Court are otherwise dismissed.

I certify that the preceding [62] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary