Fisher and Lasky
[2011] FMCAfam 987
•16 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FISHER & LASKY | [2011] FMCAfam 987 |
| FAMILY LAW – Time with father – history of drug use – best interests of children – supervision required. |
| Family Law Act 1975, ss.60CC, 61DA(2), 61DA(4) |
| Applicant: | MR FISHER |
| Respondent: | MS LASKY |
| File Number: | MLC 10 of 2010 |
| Judgment of: | F. Turner FM |
| Hearing dates: | 16, 17, 18 and 22 August 2011 |
| Date of Last Submission: | 22 August 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Arnold |
| Solicitors for the Applicant: | Samantha Ward Pty |
| Counsel for the Respondent: | Ms Elleray |
| Solicitors for the Respondent: | Michelle Moloney Family Lawyers |
ORDERS
The mother have sole parental responsibility for the children [X] born [in] 2005, [Y] born [in] 2006 and [Z] born [in] 2009.
The children live with the mother.
The children spend time with the father:
(a)For two occasions of 2 hours at, and supervised by, [B] Children's Contact Service, with the paternal grandparents Mr F and Mrs F being in attendance;
(b)
Commencing 16 October 2011, every alternate Sunday from
12 midday until 4pm at the home of the paternal grandparents and supervised by either grandparent;
(c)Commencing on the first occasion due in March 2012 the time in order 3(b) shall be extended from 10am until 4pm on Sundays and supervised by either paternal grandparent; and
(d)Commencing on the first visit in June 2012 from 10am until 5pm, such time to be unsupervised.
All changeovers occur at the home of the paternal grandparents [save for the time in order 3(a)].
The mother:
(a)Encourage the children to attend all periods of time;
(b)Be restrained from refusing to deliver the children or any one child for time for the sole reason that they have expressed a wish not to attend.
The paternal grandparents, Mr F and Mrs F are joined as parties to the proceeding.
Subject to the parental grandparents giving appropriate undertakings to the Court, one or both supervise the father’s time with the children after 2 occasions of 2 hours supervised at [B] Contact Service, at which they are to be present.
Each paternal grandparent is bound by injunction to ensure that at least one of them is in attendance with the children to supervise the time the father spends with the children until the completion of the 10th random drug screen, except for the sessions at [B].
The father is restrained by injunction from bringing the children into contact with Ms H until further order of the Court.
The father is to complete an anger management course at [B] by
1 December 2011, and provide an appropriate certificate of completion to the mother’s solicitor within 7 days of receipt of same by the father.
Commencing in October 2011, the father undergo 10 consecutive monthly random drug screens within 24 hours, upon receipt of an SMS request from the mother’s solicitor, with the results to be provided to the mother’s solicitors within a further 48 hours.
Should the father not receive an SMS for random drug screen by the third last day of a month, he is to have a drug screen and supply the results to the mother’s solicitors within 48hours, which will be taken to be the drug screen for that month.
Should any one of the 10 random drug screens show a positive result from an illicit substance the father’s time with the children shall be cancelled immediately.
The mother is to keep the paternal grandparents advised of her current mobile telephone number.
IT IS NOTED that publication of this judgment under the pseudonym Fisher & Lasky is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10 of 2010
| MR FISHER |
Applicant
And
| MS LASKY |
Respondent
REASONS FOR JUDGMENT
This matter involves an application by the father of [X] born [in] 2005 (“X”), [Y] born [in] 2006 (“Y”) and [Z] born [in] 2009 (“Z”), that the children live with the mother and spend time with him.
The mother has a daughter from a previous relationship [S] born [in] 2000 (“S”).
All four children live with their mother.
Mr Arnold appeared for the applicant father and Ms Elleray for the respondent mother.
The mother seeks orders that the three children of the relationship spend no time with their father. The father seeks final orders as follows:
Until Further Order
(1)That the children [Z] born [in] 2009, [Y] born [in] 2006 and [X] born [in] 2005 live with the mother.
(2)That the children spend time with the father:
(a)For 2 occasions of 2 hours at and supervised by [B] Children's Contact Service, and with the paternal grandparents Mr F and Mrs F being in attendance.
(b)Commencing 18/09/2011 every alternate Sunday from 12 midday until 4pm at the home of the paternal grandparents and supervised by either grandparent.
(c)Commencing on the first occasion due in March 2012 the time in order 2(b) shall be extended from 10am until 4pm Sundays
(d)Commencing on the first visit in June 2012 from 10am until 5pm, such time to be unsupervised
(3)That all changeovers occur at the home of the paternal grandparents [save for the time in order 2(a)].
(4)That the mother:
(a)Encourage the children to attend all periods of time;
(b)Be restrained from refusing to deliver the children or any one child for time for the sole reason that they have expressed a wish not to attend.
The father used heroin on and off for eleven years from the age of 17 (Transcript “T” 16/8/2011 p.18, l.35). He has been seeking treatment for heroin addiction and has produced results of drug screens. The father has an extensive criminal history (Exhibit “R2”).
Orders made on 16 December 2009 provide for [X] and [Y] to spend time with their father supervised at [B] Family Services (“[B]”); for the father to complete a drug and alcohol course, a parenting course, an anger management course, and to undertake supervised drug screens within 24 hours of a request to do so by the mother’s solicitors.
Ms P (“Ms P”), of [B], swore an affidavit on 3 May 2011 annexing a report on the father’s time with the children with relevant parts summarised below:
·Sessions commenced at [B] on 18 July 2010, when [X] and [Y] spent supervised time with their father. The father arrived late, which, according to the paternal grandmother (who gave evidence later in the hearing), is a regular happening with him. The Family Report writer Ms M (“Ms M”) comments that the inability of the father to arrive on time for appointments has caused problems in the family.
·The father arrived late at the next session on 1 August 2010 and left early. [X] and [Y] attended and spent supervised time with him.
·The father arrived late at the next session on 15 August 2010. [X] and [Y] spent supervised time with their father, but as [Z] would not settle his mother returned to collect him. The supervisor notes that the mother refused to allow the father’s partner (Ms H) or the paternal grandparents to attend. The mother expressed concerns about [Z] attending the sessions.
·The father arrived on time for the session on 29 August 2010. [X], [Y] and [Z] attended and spent supervised time with him.
·The father arrived late for the session on 12 September 2010 and left early. The mother arrived late to collect the children.
·The session scheduled for 26 September 2010 was cancelled as the mother had called [B] and stated that “[Y] did not want to attend”. The father advised [B] that he could not attend because his partner had broken her leg and needed assistance.
·The father arrived on time for the session on 10 October 2010. [X], [Y] and [Z] attended and spent supervised time with him.
·The father cancelled the session scheduled for 21 November 2010 as he was going away for the weekend with his partner.
·The mother advised [B] that [Y] did not want to attend the session on 5 December 2010. The father asked the supervisor if his partner and parents could attend the sessions. The supervisor said it could be discussed after the session.
·The mother advised [B] that [Y] did not want to attend the session on 19 December 2010, and that [Z] was unwell.
·The father arrived late for the session on 2 January 2011. [X] and [Z] attended, [Y] did not want to attend. [B] received a letter from the mother’s solicitors requesting that no one else be allowed to attend the sessions at the present time.
·
The father advised [B] that he could not attend the session on
30 January 2011.
·[Y] and [X] did not attend the session on 13 February 2011.
·The father advised [B] that he could not attend the session on 27 February 2011.
·[Y] did not attend the session on 13 March 2011.
·[Y] and [X] did not attend the session on 27 March 2011.
·[X] and [Z] attended the session on 10 April 2011. The father left early.
The overall impression the Court gains from the notes of the above sessions at [B] is that the father related well to the children, but did not make a full commitment to the scheduled visits as he was often late, or cancelled, or left early and had not been able to attend for the full duration of 11 out of 20 sessions. Ms M comments on this in her evidence.
Mr D (from [B]) gave evidence on 17 August 2011. He stated that as [B] had engaged with the father “for over a year. We wouldn’t be looking at another six months” (T 17/8/2011 p.102, l.25).
Mr Arnold submits that the father supports the second option in
Ms M’s report dated 2 May 2011, that time with the father be supervised by the parental grandparents at their house; for four hours per fortnight for six months, and thereafter for six hours per fortnight.
The Father’s evidence
The father annexed a certificate of completion of a course at [B] Health Drug and Alcohol Services, to his affidavit sworn on 5 August 2010. Also annexed is a certificate of completion of the Pit Stop Men’s Parenting Course.
The father tendered a card from [B] showing that he had an appointment on 12 August 2011 to enrol in a Men’s Behaviour Change Program (Exhibit A1). This appears to relate to the Anger Management Course he says is scheduled to start at [B] in early September 2011 to run for 16 weeks, and be completed by 1 December 2011. The father states that he is enrolled in that Course.
Mr Arnold admits that the father was addicted to heroin (T 16/8/2011 p.5, l.25).
The father tendered the results of urine drug screens (Exhibit A2).
The documents show that screens were conducted on the dates below and that only Methadone was detected above the cut off levels listed:
·24 May 2010
·28 May 2010
·7 June 2010
·10 June 2010
·18 June 2010
·25 August 2010
·27 April 2011
The father lived with Ms H for two months about 12 months ago but now lives with his parents. The Court finds that this evidence is consistent with that given by his parents.
Ms Elleray relied on a newspaper report from the [newspaper omitted] dated 13 August 2010 (Exhibit R1) to submit that the father lived with Ms H around May 2010. The date of 3 May 2010 in the report is based on hearsay from the police prosecutor’s address; it cannot be used to prove that the father was living with Ms H in May 2010. In any event it does not disprove the father’s evidence that he has not lived with Ms H since he lived with her for “two months a year ago”; that would have been late in the first half of 2010.
The father states that he is consulting Dr S (“Dr S”) in order to reduce his dosage of Methadone.
Mr Elleray tendered the LEAP Criminal Record of the father (Exhibit R2).
The record shows that the father was imprisoned for 21 months on
21 October 2003 for armed robbery and that offences and charges continued until he was sentenced to six months imprisonment on
17 August 2010 for theft and deal with property suspected proceeds of crime.
Ms Elleray tendered an Application to Treat an Opiod Dependent Person with Methadone or Buprenorphine where Dr S prescribed Methadone or Buprenorphine for the father on 5 July 2005 (Exhibit R3).
Ms Elleray tendered the Court Referral & Evaluation for Drug Intervention & Treatment (C.R.E.D.I.T) Program Confidential Assessment Report of the father dated 11 December 2002 (Exhibit R4).
Ms Elleray tendered the Methadone/Buprenorphine in Police Custody – Prescription Form (Exhibit R5).
Ms Elleray referred to Exhibit R2 and to the record that the husband faced 22 charges in Court on 18 April 2006.
The husband commented that “If I’m so bad and so raving” (on heroin) “no, you can’t” (work).
Sole parental responsibility
The father gave evidence “that the one time he assaulted her’ (the mother) “I was charged”. The assault was on 1 September 2005 and is admitted by the father (T 17/8/2011 p.7, l.27).
Ms Elleray referred to paras.[55]-[60] of the mother’s trial affidavit where she detailed another assault on her, and an assault on S as follows:
“55. Another assault took place on a day after I had collected [S] from kindergarten. I pulled into the driveway of our home and the paternal grandmother and paternal uncle [Mr T] had come to visit, meeting me in the driveway. We went inside and found the father asleep on the couch. I was bringing the food shopping in from the car as the paternal grandmother tried to wake the father. I then heard her shout “Are you back on drugs?” to the father. The father eventually got up and he was very angry. He ordered “get me a fucking drink, you fucking woke me up”. I told him to get his own drink as I was looking after the family. The father picked up some yoghurt from the fridge and hurled it at my head. He then lunged at me and head butted me hard. The father then grabbed me by the throat and tried to strangle me. He was holding [S] and I was trying to move her away from him and get back to our car. I eventually made it out to the car but he grabbed me again and smashed my head into the car, holding me strongly by the throat. I began to choke and was gasping for breathe.
56. The paternal grandmother and [Mr T] watched but did nothing to help me. I was pleading with the paternal grandmother to ask him to let me go. [S] was in the car watching as the father choked me. He finally let go of me and tried to get into the car to grab [S], but I got there first and held [S] in my arms.
57. The father tore [S] from my arms and began to assault her, calling her a “fucking little bitch” and picking her up by her throat, strangling her mid-air. The paternal grandmother and [Mr T] continued to just watch. I yelled at them to call the police but they did not do so and said “No [Ms Lasky], he will go back to jail.” They did nothing to help [S] and I at all.
58. Whilst the father held [S] in this way I punched him, trying to force him to let go of her. He threw [S] to the ground like a rag-doll and I grabbed her and ran away from him. I could not believe how bad the father’s temper was. I kicked at him as I ran away. During this whole ordeal, four month old [X] was in her bouncer in the lounge room.
59. [S] had marks all around her neck and was very shaken. A lady came out of her house two doors up from us to help. I had bruises and marks on me from the father’s assault. [S] and I were terrified.
60. Following this assault I went back to the house to collect [X] and I then I went to a neighbour’s house. The father took off in my car and wrote if off in an accident. I later called the police and eventually the father was charged and convicted of assaulting both [S] and I, attempting to kill both of us and attempting to cause serious injuries. The police also took out an Intervention Order against the father on my behalf”.
The father admits that he strangled the mother (T 17/8/2011 p.8, l.21) and that he “picked up [S] and pushed her away” (Ibid p.8, l.26) in what he admits “must have been an absolutely frightening experience for a four year old” (Ibid p.17, l.28). It is not clear to the Court whether the detailed assaults were on different days or were the same incident (T 17/8/2011 p.14, l.3) (Exhibit R6 refers). However even if it was only one occurrence, it was very serious.
Ms Elleray referred to the affidavit of Dr N sworn 20 July 2011, a forensic psychiatrist who saw the father, and to Dr N’s observation that the father expressed no regret or remorse about the assaults.
The Court finds the assault on 1 September 2005 was family violence within s.61DA(2) of the Family Law Act 1975 (the “Act”), and therefore the presumption of equal shared parental responsibility does not apply. The presumption is also rebutted by evidence from Ms M that the parties are unable to communicate effectively. It therefore would not be in the best interests of the children for the parents to have equal shared parental responsibility [s.61DA(4)].
The father says that Dr H from [B] Health was his drug counsellor, but as he is not “using any more” he no longer needs to see him.
Ms Elleray referred the father to events on 30 October 2005 when the father hit and kicked the back door of the mother’s house in order to gain entry (Exhibit R7).
Ms Elleray referred the father to an incident on 6 November 2005 when the father attended the mother’s house in breach of an Intervention Order (Exhibit R8 refers).
Ms Elleray referred the father to events of 9 December 2005 when the father attended the mother’s house in breach of an Intervention Order; various other charges were withdrawn (Exhibit R9 refers).
Ms Elleray then put to the father that he was sentenced to imprisonment for various driving offences including driving whilst disqualified; fraudulent use of number plates and abusive language.
Ms Elleray put to the father, that “he was servicing a heroin habit in August 2010”.
The father disagreed and stated that the matter did not go to Court for nine months (after the offence) and he was “clean all up before then”.
The father agreed that he was using heroin with Ms H in March 2010 (T 17/8/2011 p.35, l.26).
The father admitted that he is on a Methadone Program, which “you reduce every day”, and it “takes years to come off it, and he relapsed” (T 17/8/2011 p.40, l.1).
Ms Elleray referred the father to the affidavit of Dr N, and questioned the father about when he lived with Ms H, and when he moved back in with his parents. Nothing conclusive came from that evidence.
The father stated that he has a probationary driver’s licence with a zero tolerance for alcohol.
Ms Elleray then inspected the father’s arms and stated that “there does not appear to be any recent track marks on Mr Fisher’s arms”. The father disagreed that he “has urges to go out and have a taste” (of heroin) “Because I don’t want to live that life any more; I am over it” (T 17/8/2011 p.48, l.21). “I’ve just realised that it just leads to more depression; it’s just a quick fix. It doesn’t really help anything in the long run” (Ibid p.49, l.2).
The Court accepts that the father is on a Methadone Program with the intention of not using heroin again, but that there is still a danger that he could relapse.
Ms Elleray referred the father to para.[10] of the mother’s affidavit sworn 21 July 2011 where she stated that “his (the father’s) presentation at Court on 9 May 2011 supports my belief that he continues to use drugs”. The mother has not been established to be an expert in that field, and the Court does not find her opinion on that matter to be decisive, even though the mother stated that he presented at Court skinny, drawn and pale with cold sores on his lips, and that he looked that way over the many years that he was using heroin. The father responded that he was unwell that day with the flu, and had cold sores because he was run down.
Ms Elleray cross examined the father extensively over his delays in providing results of requested drug screens (Ibid [13]). The Court is not satisfied with the father’s reasons for such delays. When a Court orders drug screens are to be conducted, and results provided, those orders must be complied with strictly; failure to do so could have adverse consequences for the father in the future. The father gave evidence that he had not used heroin since April 2010.
Ms Elleray referred then to Annexure “LL6” to the mother’s affidavit (Ibid) that shows low Creatinine levels on 24 May 2010 and 7 June 2010. Without expert evidence about the reason for this, the Court is not able to draw any conclusions from the readings.
Ms Elleray referred the father to a Sub Incident Summary Report dated 30 May 2011 (Exhibit R10) about the father threatening Ms H on
30 May 2011. The Court notes that Ms H is recorded as having stated to the police that her relationship with the father “ceased a few months ago”.
Ms Elleray referred the father to a Sub Incident Summary Report dated 23 June 2011 (Exhibit R11) about the father arguing with Ms H in her house on 22 June 2011. The report refers to “present relationship difficulties”.
Ms Elleray referred then to the LEAP Criminal Record dated 23 June 2011 (Exhibit R12) containing the criminal record of Ms H.
Ms Elleray then took the father through the affidavit and report of
Ms P sworn 3 May 2011.
Ms Elleray referred the father to not taking a present or birthday cake for [Y] to the session on 24 April 2011. He responded that he did not get paid that week and could not borrow the money, and took her a present the following fortnight. He was not expecting [Y] to be present on 24 April 2011.
Ms Elleray referred the father to the events of 5 June 2011 where he purchased a birthday cake for [X]’s birthday on 1 June, and presents for [X] and [Z], but arrived ten minutes late and the mother had left with the children.
Mr Arnold questioned the father about when the mother took S to Adelaide and had to be brought back by the Australian Federal Police.
Mr D (Acting Coordinator, [B] Children's Contact Service)
Mr D agreed that the father’s sessions had taken place on 8 and 22 May, 19 June, 17 and 31 July and 14 August 2011. Mr D observed that the father was a few minutes late a few times but that “there is a fairly strong commitment” to the sessions.
Mr D stated that from his reading of the notes the father was “attending to the children and interacted appropriately”. Mr D stated that as [B] has been involved with the family for a year now, they would not be looking at a further six months.
The evidence of the Paternal Grandmother
The paternal grandmother, Mrs F, (“the PGM”) gave evidence that she was with her son when he purchased the birthday cake, and that he telephoned [B] and they arrived at [B] about five to ten minutes past one, but were told that the mother had gone.
The PGM states that the father “is not the best on time”.
The PGM states that the father lives at home with her. She works from 7am to 3pm roughly five days a week. She works Saturday/Sunday the first week and is off the following week, which is the week the father spends time with the children. She is home Thursday/Friday of the first week and Thursday/Sunday of the second week. Her husband works night shift and is home during the day every day. The PGM states that the father “hasn’t been (living) with Ms H probably well over 12 months – but might spend a night at Ms H’s when there is no one to collect him”.
She observes that the father’s “anger is under control, and is better that what is was” (T 18/08/11 p.17, l.44).
The PGM stated that the paternal grandparents had not brought proceedings to spend time with the grandchildren because the mother has turned her back on them in public. The PGM states that the father is not irritable and aggressive everyday in her home, and that she has not seen his volatile nature since 1 September 2005. The PGM sates that the father “did not throw [S] on the ground like a rag-doll” on 1 September 2005, but that “he put his hands around ([S]’s) throat”.
The PGM was not asked if she is willing to supervise the father’s time with the children. However the Court finds that she is available to supervise the father’s time with the children:
·After 4pm on any weekday; and
·On Thursday/Friday in week one, and Thursday/Sunday in week two.
The Court orders that the paternal grandparents be joined as parties to this proceeding.
In her affidavit sworn on 10 August 2011 the PGM stated:
“Either myself or my husband would be able to be in full time attendance if the children were able to spend time with him (the father) at our home. If they were to stay overnight we would be able to provide appropriate beds and bedding for the children and a comfortable family situation”.
The PGM gave evidence that if time is spent with the children at her house, under her supervision, if “anything goes wrong, that I’ve got to ring (the mother) to come and get the children”.
The evidence of the Paternal Grandfather
The paternal grandfather, Mr F, (“the PGF”) stated that he works night shift and sleeps three hours a night. He says that there is nothing to stop him from supervising the children, if that is what the Court orders. He says that the father “would be under supervision all of the time”. The PGF says that the father “has made tremendous advances in relation to his anger management problems and is now able to control his temper even when frustrated”.
The PGF states that “if needs be either myself or my wife would be able to be in full time attendance during the time that he (the father) spends with the children if it is at our home. I work night shifts but do not start work until after my wife returns home from her job”.
The PGF says that he would like to see his grandchildren.
The PGF says that the father goes to see Ms H every now and then for a weekend.
The PGF normally starts work at 5pm or 10pm on Saturdays and Sundays and works until 6am.
The PGF states that he understands that supervision (of the children’s time with their father) means “stay with the children all the time” and that if the father became “irritable and out of control… I would refrain him from getting anywhere near the kids, to start with. And I would probably drop him”.
The Court finds that the PGF would be available to supervise the children spending time with the father during the day, each day of the week.
One of the paternal grandparent’s would be available to supervise time with the children in their house during the day. The Court finds them to be suitable supervisors, subject to them each giving satisfactory undertakings to the Court.
The Mother’s evidence
The mother states that the father head butted her on 1 September 2005 and grabbed her by the neck and grabbed S by the throat. The allegation of head butting was not put to the father in cross examination. The Court accepts that the events, apart from the head butting, happened on 1 September 2005.
Although it was six years ago, as found above, the violence between the parties and the inability of the parties to communicate effectively, are reasons to rebut the presumption of equal shared parental responsibility, and the Court orders sole parental responsibility to the mother.
The mother accepts that the father has completed parenting training but is not satisfied with the drug counselling that he has completed.
The mother believes that the father is still using heroin. The mother concedes that she is not a professional and could not say whether the father is using heroin at present.
The mother agrees that for future drug screens it would be possible for her solicitors to send the father an SMS directly to his phone, to do a test within 24 hours (T 18/08/11 p.48, l.4).
The mother states that it would give her much more confidence if over the next 12 months the father does random drug screens within 24 hours of a request and they are negative other than for Methadone, and completes another drug and alcohol course and provides a certificate.
The mother states that she cannot trust the paternal grandparents with her children at this point in time.
The mother denies snubbing the paternal grandparents.
The mother stated that she was willing to let the paternal grandparents see the children supervised at a children’s contact service. As a result, the Court made orders by consent to that effect on 18 August 2011
(T 18/08/11 p.64, l.11).
Mr Arnold tendered the Application for Planned Respite Care (PRC) for the mother (Exhibit A3). The first case note therein was marked Exhibit A4.
The mother denies that she also had problems with S’s paternal grandparents.
The mother stated that she definitely wanted the father’s time with the children (in the current matter) supervised.
The mother agreed that her application is for the father to have no contact with the children (T 18/08/11 p.69, l.39).
The mother was cross examined about the report by Dr N (annexed to her affidavit sworn 20 July 2011) and her conclusion that “if the Court finds that the father should have increased access, or unsupervised access, it is possible that the mother might need psychological assistance to cope with her heightened anxiety”.
The Court notes Dr N’s findings and opinion as follows:
“39. Accepting Mr Fisher’s account of his situation and his psychiatric history as being honest, then he does not appear to be suffering from a psychotic illness, a mood disorder or a neurosis. He does however, have a longstanding history of failing to conform to social norms with respect to lawful behaviours as indicated by his acknowledged criminal history, his failure to plan ahead as exemplified by his not using contraception despite an awareness of his partner’s frequent pregnancies, irritability and aggressiveness as exemplified by the charges of assault, and an apparent lack of remorse in that he expressed no regret about his assault upon his ex-partner or about pushing his stepdaughter away from the scene, or indeed any concern that she had witnessed the event.
40. However as I note in your letter of introduction you point out that “it is clear that our client’s behaviour in the past is outrageous but as you will see he has served a term of imprisonment for assaulting the mother. However our instructions (and observations by the writer) are he has certainly changed his ways”. Certainly I note from the documentation provided that he has undertaken various courses and that allegedly his drug screen tests are normal aside from evidence of methadone which he is currently prescribed. I am unaware how many drug screens he has undertaken but would assume that the Court would be able to access this information.
41. Certainly if the court deems that his behaviour to date has improved sufficiently for him to have increased access to his children then I believe it might be prudent to ensure that such access is gradually increased but that in the first instance there be supervision by an agreed competent supervisor.
42. I note that he is seeking access in the paternal home and I am aware of course that his ex-partner has concerns about such an arrangement. I leave it to the Court to determine a suitable supervisor.
43. From a psychiatric perspective he should certainly continue attending drug and alcohol services and hopefully reduce his use of methadone over time. It would be ill advised for him to have access to his children if he were to resume the use of drugs and hence drug screens should continue before a period of contact.
44. Obviously I cannot predict whether he will remain drug free into the future though I note he has previously attempted to do so by means of methadone and had a relapse but chose to resume the methadone program. It is to be hoped that this is successful on this occasion.
The mother stated that any time with the father should be subject to “long term” supervision (T 18/08/11 p.76, l.32).
The mother states that she has taken all three children to each session at [B] and understands that it is her duty to “encourage the time”. The mother asks the girls if they would like to go (to see their father), as “they have a right to say how they feel and whether they want to attend or not”. The mother says that the workers at the Centre also ask the girls if they want to see their father.
The mother says that there is “no real bond between the father and [Y]” (T 18/08/11 p.83, l.6). The Court finds this comment disturbing; something needs to be done to remedy the situation.
The mother admits telling the workers at the Centre that “the father’s new job is dealing cocaine” (T 18/08/11 p.89, l.20).
The mother was then referred to the incident on 5 June 2011, when the father had telephoned the Centre to say that he was running ten minutes late as he was “picking up a cake and presents for the children”. The mother left the Centre and the father arrived shortly thereafter. A worker at the Centre spoke to her when they were “halfway on their way out” (T 18/08/11 p.91, l.7), and said that the father “had just arrived”, but after being told that she did not have to return, the mother declined to return. The father had told [X] and [Z] at the prior contact that next time he would bring a cake and gifts for them. Even if the father was 20 minutes late as alleged, the mother was aware that he was bringing a cake and presents for the children. The incident does not show a willingness by the mother to facilitate a close and continuing relationship between the father and the children [s.60CC(3)(c)]. It shows quite the opposite.
The mother stated that she told the children that the father was running late and that she did not tell them that he was “late because he was picking up a cake and presents” (T 18/08/11 p.95, l.30), however a few questions later she changed her evidence and said that she did tell them that “he’s getting a cake and presents” (T 18/08/11 p.96, l.20). If the credit of the mother was an issue, the Court would be inclined to make an adverse finding on credit; however, the change may be explained by a delay in recollection. If the mother did tell the children that the father was late because he was getting a “cake and presents” that would show a disregard by the mother for the feelings of the children. To alert them that their father was bringing a cake and presents, and then to leave or refuse to return, knowing that the father “had just arrived” (T 18/8/2011 p.98, l.11) or “was only minutes away” (Ibid l.37) shows a poor attitude to the responsibilities of parenthood [s.60CC(3)(i)], or to the feelings of the children [s.60CC(3)(m)].
Mr Arnold tendered the file case notes for Contact 24 (Exhibit A5).
The mother stated that she had a relationship with [name omitted] who is now in jail, and denied that she had been to visit him in jail (T 18/8/2011 p.102, l.37), yet in the Family Report of Ms M dated 16 July 2010 at [48], Ms M reports that the mother told her that “she has met him at the prison without the children and he phones her from prison once a week ‘as a family friend’”; On questioning, the mother admitted to the Court that she “went once to visit him without the children” (T 18/8/2011 p.103, l.42). Again, the mother’s evidence is inconsistent, although the mother said that she “didn’t visit him” and “dropped clothes off for him”. The combined inconsistencies lead the Court to prefer the father’s version of events when there is a conflict with the mother’s version.
The mother alleges that the PGM witnessed the events on 1 September 2005, but did nothing to assist S and declined to call the police. She alleges that the father tried to strangle S. The Court accepts that the PGM took S from the father who has pushed S, and that the mother then took S from the PGM. The PGM did not call the police. The failure to call the police does not mean that the PGM is not a suitable person to supervise the father’s time with the children. However, if S is fearful of the father, she should not be brought into contact with him – not because the Court considers that she would be at any risk from the father, but because of possible distress that S may feel.
The mother states that a rock was thrown through her window after she left [B] on 5 June 2011 (Ibid p.107, l.1) – she alleges that the father threw it – but has no proof. The PGM gave evidence that she was with her son, after the failed session on 5 June 2011 – it was not put to her that her son threw the rock. It was not put to the father that he threw the rock – the Court finds that allegation not proved.
The mother says that supervised contact would be best for the children… “for a long period of time”. She says that there “needs to be committed regular contact”.
The evidence of the Family Report Writer (Ms M)
Ms M wrote two reports.
The first report dated 16 July 2010.
Ms M states:
·“Their hostility towards each other is quite intense and ongoing” [39]
·“Some of her concerns would be understandable if the father continues to use drug” [42]
·“Only way that (the father) would be able to convince the mother and the Court that he has quit the habit, would be to obtain regular drug screening with clear results for some months” [44]
·“It is essential that the mother continues to facilitate supervised visits regularly and the father attends as organised, as on and off visits are not in the best interests of the children” [51]
The second report dated 2 May 2011.
Ms M states:
·If the father’s account of his latest lifestyle is honest and if he has remained drug free, it would seem that the father’s time with the children could take place outside the centre. Even then for a period of 6 months, it is suggested that the children spend time with the father once a fortnight for 4 hours at the home of his parents and his father or mother is available on a substantial basis during the time the children stay with the father” [40]
·“If such visits progress well for the next 6 months the children’s time with the father could be increased to 6 hours on a fortnightly basis still based (on) the above setup” [41]
The oral evidence of Ms M
Ms M stated that the father is able to comfort the children when they are distressed, and the children respond well to him.
Ms M has some concerns about the father not attending on time and not being consistent with visits. It is vital that the father understands that whatever time he is to spend with the children, he must be reliable and consistent – as without that he will experience difficulty gaining and keeping the trust of the children.
Ms M states that the father sometimes flares up in the presence of the mother “unless it is in a very well controlled safe environment with someone who knows how to calm both of them down”. This is a problem that could arise if the parents confront each other at changeovers. The way to resolve it is for one of them not to attend changeovers, as Ms M “does not think that they can calmly exchange children” and a “changeover centre” would be best.
Ms M states that the parties “need counselling”.
Ms M agreed that unsupervised time would be alright if the father is drug free for a consistent period of 10 months, and there is (sic “are”) no more dramas between the parents (T 22/08/11 p.12, l.46).
Ms M states that “if the father continues to be on drugs, if the psychiatric report says there is something basically wrong with the way the person is, and then you will have to consider no contact”.
Dr N Report
The Court notes that the evidence is that the father is not using illicit drugs, and the psychiatric report by Dr N (Annexure “CN2” to the Affidavit of Dr N sworn 20 July 2011) dated 26 June 2011, states that he:
“does not appear to have a psychotic illness, a mood disorder or a neurosis. He does however, have a longstanding history of failing to conform to social norms with respect to lawful behaviours as indicated by his criminal history… not using contraception…, irritability and aggressiveness as exemplified by his charges of assault and a lack of remorse in that he expressed no concern for his partner whom he assaulted and no regret about pushing his stepdaughter away from a situation or indeed concern that she had witnessed the situation” [31]
Dr N reports that:
“Certainly, if the Court deems that his behaviour to date has improved sufficiently for him to have increased access to his children that I believe it might be prudent to ensure that such access is gradually increased but that in the first instance there be supervision by an agreed competent supervisor” [41]
The Court finds that there is evidence that the father’s behaviour to date has improved sufficiently for him to have graduated increases in his time with his children, with supervision in the first instance, at [B].
Dr N continued:
“From a psychiatric perspective he should certainly continue attending drug and alcohol services and hopefully reduce his use of methadone over time. It would be ill advised for him to have access to his children if he were to resume the use of drugs and hence drug screens should continue before a period of contact.” [43]
The evidence is that the father is on a Methadone program under the supervision of his doctor. The Court finds that random drug screens must continue for 10 months, and any positive result of an illicit substance will result in time with his children ceasing.
Ms M stated that if the contact centre is not available; if he is drug free and there is a safe changeover and there is someone supervising – “I’m not sure about his parents. I don’t have information about them. If they are considered appropriate supervisors, then, well it could happen in their home” (T 22/08/11 p.13, l.29). She states that the paternal grandparents have to have an agreement with the Court as to what they will do and how they will protect the children.
The Court has material about the paternal grandparents and has observed them give evidence. The Court is satisfied that both of them are suitable supervisors, subject to full undertakings being given.
Ms M agrees that someone who has used heroin for 10 to 11 years is quite a hardened addict, but she “has come across people who have beaten the habit… and go on to be successful parents” (T 22/08/11 p.14, l.21).
Ms M states that she is “not an expert with the drug issue”.
Ms M agrees that “the Court should be cautious allowing the father unsupervised time for 12 months or so”.
Ms M states that it is essential that the mother continue to facilitate supervised visits regularly and that the father attend as organised. This recommendation goes against the mother’s proposal that the father have no time with the children. The Court accepts Ms M’s proposal as being in the best interests of the children [the Court refers to s.60CC(2)(a)].
Ms M states that when the children are with their father and when “everything is good…, the children are very happy with him, they want him, they ask a lot of questions” (T 22/08/11 p.25, l.26), and “if the paternal grandparents happen to be appropriate supervisors then there could be a contact kept between the father and the children, so that they don’t lose out on… their father being taken out of their life completely. So I’m not looking at… overnight or long time and it’s very limited…- and it’s hoping that the grandparents will recognise if the father is on drugs and will not allow contact”. If the grandparents recognise that the father is not “with his full faculty, they will have to cancel the visit and protect the children. Their safety comes first”(T 22/08/11 p.26, l.3).
The Affidavit of Ms B sworn 3 June 2011
The affidavit of Ms B states that she is a psychologist who prepared a report in June 2010 in relation to the mother and her attendance at [B] Health Drug and Alcohol Services.
The mother has no substance abuse history, but attended in relation to the father’s behaviour. The mother suffered Post Traumatic Stress Disorder.
The Affidavit of Ms L sworn 4 May 2011
Ms L reported the father throwing items of shopping at the mother, and that S was terrified of the father when she was 6 or 7 years old (S is now 10 years old). The Court accepts that S should not be brought into contact with the father in this matter. Ms L states that the father purchased drugs (which from para.[2] was in July 2005). Ms L refers to things she was told of the incident of 1 September 2005.
The Affidavit of Mr L sworn 4 May 2011
Mr L reports getting calls from the mother (his daughter) about the father’s violent behaviour and abusive language. Mr L referred to what he was told about the incident on 1 September 2005.
Closing address by Ms Elleray
The mother seeks that the father’s time with the children not continue and that his time with them be reserved. As a fallback, the mother proposes that the father’s time with the children continue to be supervised until such time as the father provides adequate evidence, to the Court, that he is truly addressing his drug dependency issues and has completed an anger management course and has not come (to the attention) of the authorities until the end of his suspended sentence on 17 August 2012 (T 22/08/11 p.27, l.14).
Ms Elleray referred to the father being imprisoned in 2007 for 16 months, and that he is currently on a suspended sentence until
17 August 2012. Ms Elleray submits that the father’s evidence that he has been on the waiting list for an anger management course since December 2009 ‘is an out and out lie” (T 22/8/2011 p.28, l.43). There is no evidence to prove that to be a lie.
It is submitted that the mother has grounds to believe that the paternal grandparents “cannot be trusted and… are not going to provide the support and the protection to these children that is needed”. The Court does not find that the paternal grandparents cannot be trusted and before ordering that they supervise the father’s time with the children, will require them to attend Court to give undertakings that they will properly supervise the time, will be present at all times and will protect the children and call the mother should anything untoward happen.
Ms Elleray proposes that the paternal grandparents be able to see the children at [B]. An order had been made to that effect.
Closing address by Mr Arnold
Mr Arnold submits that the paternal grandparents requested that they see the children at [B] in December 2010 but the mother refused.
Mr Arnold submits that the mother opposed the paternal grandparent’s of S seeing her, and that Court orders were required.
Mr Arnold submits that the father has been living with the paternal grandparents since June 2010.
Mr Arnold put the father’s proposal to the Court in writing on
16 August 2011 which is as follows:
Until Further Order
(1)That the children [Z] born [in] 2009, [Y] born [in] 2006 and [X] born [in] 2005 live with the mother.
(2)That the children spend time with the father:
(a)For 2 occasions of 2 hours at and supervised by [B] Children's Contact Service, and with the paternal grandparents Mr F and Mrs F being in attendance.
(b)Commencing 18/09/2011 every alternate Sunday from 12 midday until 4pm at the home of the paternal grandparents and supervised by either grandparent.
(c)Commencing on the first occasion due in March 2012 the time in order 2(b) shall be extended from 10am until 4pm Sundays
(d)Commencing on the first visit in June 2012 from 10am until 5pm, such time to be unsupervised
(3)That all changeovers occur at the home of the paternal grandparents [save for the time in order 2(a)].
(4)That the mother:
(a)Encourage the children to attend all periods of time;
(b)Be restrained from refusing to deliver the children or any one child for time for the sole reason that they have expressed a wish not to attend.
Mr Arnold submits that the above are the father’s proposal’s except that:
·The ten random drug test requests are to be sent by SMS to the father’s mobile telephone requesting a test within 24 hours.
Mr Arnold submitted earlier in the hearing that the SMS’s should be from the mother’s solicitor (T 22/08/11 p.12, 3.42). The Court accepts that that procedure will decrease contact between the parties and hopefully avoid conflict.
·Commencing in September 2011 there be ten consecutive random monthly drug screens with negative results and then there be unsupervised time with the father.
·There be a continuing restraint in relation to bringing the children into contact with Ms H.
·The father complete the anger management course for which he is enrolled, and was due to commence a week and a half after the hearing on 22 August 2011 (T 22/08/11 p.36, l.45).
Section 60CC factors
Section 60CC(2)(a) – The Court accepts Ms M’s opinion the “it is essential that the mother continues to facilitate supervised visits regularly, and that the father attend as organised”. The Court finds that the children enjoy their time with their father. Overtime, increases in their time with him should occur. This will facilitate the children having a meaningful relationship with both parents.
Section 60CC(2)(b) – There is a need to protect the children from the risk of physical or psychological harm by the father. That need will be met by the requirement for 10 random monthly drug screens, and supervision of the time with the father.
Section 60CC(3)(a) – The children were observed by Ms M to enjoy their time with their father. Apparently [Y] is resistant at times, but the mother must encourage [Y] to develop a relationship with her father.
Section 60CC(3)(b)(i) – The children have a good relationship with the mother. [X] and [Z] have a developing relationship with their father and [Y] is falling behind.
Section 60CC(3)(b)(ii) – There is no evidence about the relationship between the maternal grandparents and the children. The paternal grandparents want to have a relationship with the children. The children should be free to develop their relationship with the paternal grandparents.
Section 60CC(3)(c) –The father seeks that the children live with the mother. The mother seeks, primarily, that the children spend no time with the father. The Court finds that it would not be in the best interests of the children to remove their father from their lives. The more beneficial option for the children is the mother’s fallback position that the father’s time continues to be supervised until such time as he produces adequate evidence that he is truly addressing his drug dependency issues and has completed an anger management course and has not come to the attention of the authorities until the end of his suspended sentence on 17 August 2012.
The Court is satisfied that the father is on a Methadone program under the supervision of Dr H, and the Court requires the father to complete an anger management course by 1 December 2011. He has attended [B] Health Drug and Alcohol Services and “competed all six of the Education Skill Sessions” involved in the course (Annexure “LMF 4” to the father’s affidavit sworn 5 August 2010). The Court will require the father’s time with the children to be supervised until the completion of 10 negative consecutive monthly random drug tests. This will not take the need for supervision up until 17 August 2012, and the Court rejects that part of the mother’s proposal. It is not in the best interests of the children to let them believe that their time with their father needs to be supervised beyond that which is necessary [s.60CC(3)(m)].
Section 60CC(3)(d) – Separating the children from their mother to spend time with their father and the paternal grandparents is not likely to have adverse effects on the children. The Court envisages positive effects on the children. It will keep them in touch with their direct and extended family.
Section 60CC(3)(e) – There is a practical difficulty requiring time to be supervised permanently. It is best to implement a program that will remove that need.
Section 60CC(3)(f) – Both parents and the paternal grandparents are able to provide for the needs of the children. By the paternal grandparents providing supervision they will facilitate the need and right of the children to have a meaningful relationship with their father.
Section 60CC(3)(g) – It is envisaged that as [Y] grows older she will realise that there are benefits to her having a meaningful relationship with her father.
Section 60CC(3)(h) – Not applicable.
Section 60CC(3)(i) – The father now has a good attitude to the children, but by his criminal and drug related behaviour he has shown that he has had a poor attitude to his responsibilities as a parent. Further his inability to attend on time, and consistently, to spend time with his children shows a poor attitude which he must change if he is to gain their trust and confidence.
Section 60CC(3)(j) – There has been significant family violence towards the mother.
Section 60CC(3)(k) – There is no current intervention order.
Section 60CC(3)(l) – Providing a schedule with strict conditions to work towards unsupervised time with the father is least likely to lead to the institution of further proceedings in relation to the children.
Section 60CC(3)(m) – The children need to be shown that after a period of time, there is no need for their time with their father to be supervised, as he will have demonstrated that he can be trusted, and that they will be safe with him.
Section 60CC(4)(a) – The mother has prevented the father from being involved in making decisions about long term issues relating to the children.
Section 60CC(4)(b) – As above.
Section 60CC(4A) – The Initiating Application states that the parties separated in June 2008, although during the hearing it was contended that they separated in August 2004. If the earlier date is correct then the events of 1 September 2005 occurred after separation. That was a very serious occurrence and will not likely be forgotten by the mother. However for the benefit of the children, the mother could take into account the efforts by the father to rehabilitate himself.
A circumstance since separation is that the father has been spending supervised time with the children at [B]. When “everything is good…, the children are very happy” with their father,” they want him, they ask a lot of questions” (Ms M T 22/08/11 p.25, l.26).
The father has been in a relationship with Ms H, but said he no longer lives with her. The Court will grant an injunction which requires that the father not bring the children into contact with Ms H until further order.
Findings
The Court finds that the “time with” regime proposed by the father, subject to the related restrictions, is in the best interests of the children. The mother’s fallback provision is similar, except that she seeks a restriction that the father not come to the attention of the authorities until the end of his suspended sentence on 17 August 2012. The Court has dismissed that restriction (supra).
The Court finds that there has been family violence by the father, and because of this and the behaviour of the father it is not in the best interests of the children for the parents to have equal shared parental responsibility for the children (S.61DA(2)(b) and (4).
The Court orders that:
(1)The mother have sole parental responsibility for the children [X] born [in] 2005, [Y] born [in] 2006 and [Z] born [in] 2009.
(2)The children live with the mother.
(3)The children spend time with the father:
(a)For two occasions of 2 hours at, and supervised by, [B] Children's Contact Service, with the paternal grandparents Mr F and Mrs F being in attendance;
(b)Commencing 16 October 2011, every alternate Sunday from 12 midday until 4pm at the home of the paternal grandparents and supervised by either grandparent;
(c)Commencing on the first occasion due in March 2012 the time in order 3(b) shall be extended from 10am until 4pm on Sundays and supervised by either paternal grandparent; and
(d)Commencing on the first visit in June 2012 from 10am until 5pm, such time to be unsupervised.
(4)All changeovers occur at the home of the paternal grandparents [save for the time in order 3(a)].
(5)The mother:
(a)Encourage the children to attend all periods of time;
(b)Be restrained from refusing to deliver the children or any one child for time for the sole reason that they have expressed a wish not to attend.
(6)The paternal grandparents, Mr F and Mrs F are joined as parties to the proceeding.
(7)Subject to the parental grandparents giving appropriate undertakings to the Court, one or both supervise the father’s time with the children after 2 occasions of 2 hours supervised at [B] Contact Service, at which they are to be present.
(8)Each paternal grandparent is bound by injunction to ensure that at least one of them is in attendance with the children to supervise the time the father spends with the children until the completion of the 10th random drug screen, except for the sessions at [B].
(9)The father is restrained by injunction from bringing the children into contact with Ms H until further order of the Court.
(10)
The father is to complete an anger management course at [B] by
1 December 2011, and provide an appropriate certificate of completion to the mother’s solicitor within 7 days of receipt of same by the father.
(11)Commencing in October 2011, the father undergo 10 consecutive monthly random drug screens within 24 hours, upon receipt of an SMS request from the mother’s solicitor, with the results to be provided to the mother’s solicitors within a further 48 hours.
(12)Should the father not receive an SMS for random drug screen by the third last day of a month, he is to have a drug screen and supply the results to the mother’s solicitors within 48hours, which will be taken to be the drug screen for that month.
(13)Should any one of the 10 random drug screens show a positive result from an illicit substance the father’s time with the children shall be cancelled immediately.
(14)The mother is to keep the paternal grandparents advised of her current mobile telephone number.
I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 16 September 2011
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