GALAWAY & ALBION

[2020] FCCA 2621

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALAWAY & ALBION [2020] FCCA 2621

Catchwords:
FAMILY LAW – Parenting – interim hearing about a child who is two years old – whether it will benefit the child to spend any time with the father currently – where the child lives with the mother and has not spent time with father for more than 12 months – where the father has a criminal history – where the father has recently been charged with assault – where both parties have history of illicit drug use – where the father has engaged in drug therapy and counselling.   

Legislation:

Family Law Act 1975 (Cth) ss.11F, 60CC(2)

Cases cited:

Macey & Liddell [2018] FamCA 1027

Applicant: MR GALAWAY

Respondent: MS ALBION

File Number: ADC 1326 of 2020

Judgment of: Judge Young

Hearing date: 3 September 2020

Date of Last Submission: 3 September 2020

Delivered at: Darwin

Delivered on: 17 September 2020

REPRESENTATION

Counsel for the Applicant: Mr Childs

Solicitors for the Applicant: Dixon Gallasch

Counsel for the Respondent: Mr Tredrea

Solicitors for the Respondent: Carmen Wood & Associates

ORDERS

UNTIL FURTHER ORDER:

1. The child X born in 2018 (“the child”) is to live with the mother.

2. Both parties are to enrol immediately in the Children’s Contact Service at Suburb B forthwith for the purpose of the child spending supervised time with the father at the centre on six occasions prior to the adjourned date.

3. Upon completion of the child spending supervised time with the father as referred to in paragraph 2 the father is to request a report is to be prepared by a representative of the Child Contact Service in regard to observations of the child and the father.

4. That within 24 hours of a receipt of a request in writing from the mother or her solicitor the father is attend and submit to a urine test for the presence of illegal drugs and/or substances in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 on the basis that such testing may be requested not more than once per calendar month.

5. The results of the testing be provided to the mother or her solicitor upon receipt of same.

6. That within 72 hours of a receipt of a request in writing from the mother or her solicitor the father is to undergo one hair follicle drug analysis testing prior to the adjourned date at the expense in all things of the father with the sample of hair to be no less than 3 cm.

7. Until such time as the hair follicle drug analysis test referred to in paragraph 6 herein has been completed, the father is to ensure that he maintains at least 3 cm of hair from which a sample may be taken and his hereby restrained and an injunction is hereby granted restraining him from using any chemicals or treatments on his hair other than commercially available shampoo and/or conditioner.

8. That the father hereby authorises the drug testing collection service responsible for the administration of the test referred to in paragraph 6 herein to dispatch directly to his solicitor a copy of the test results forthwith upon them becoming available, with the father’s solicitor to provide same to the mother’s solicitor within seven (7) days thereafter.

9. The matter be adjourned to 25 May 2021 at 9:30am for mention.

IT IS NOTED that publication of this judgment under the pseudonym Galaway & Albion is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1326 of 2020

MR GALAWAY

Applicant

And

MS ALBION

Respondent

REASONS FOR JUDGMENT

1. This is an application about a child, X, who was born in 2018 and is thus about two years and three months old.  The father seeks interim time orders whereby the child spends time with him at the Suburb B children's contact centre for six visits, then a report is prepared of the observations of the child and father and the matter is then further considered. 

2. The mother is opposed to the child spending any time with the father.  The mother takes the view that the child would not benefit from a relationship with the father, now or in the future, and she is opposed to the child spending any time at all with the father.

3. The child last spent time with the father at some time prior to 11 June 2019.  It was not disputed that on that day the mother took the child to the father's residence for the child to spend time with the father. The mother said that when she arrived she entered the father’s home. He was asleep. She suspected he was drug affected. She left but then returned after driving around the block. The father was then awake but, after speaking to him, she decided that it was not appropriate for the child to spend time with him. She left and got into her car to drive away. She said the father attempted to stop her leaving and put his hand inside the car window, attempted to open the door and punched the window and a door panel, leaving a dent.  He was subsequently convicted of aggravated assault and damage to property and sentenced to 14 days imprisonment, fully suspended. He was ordered to pay compensation to the mother.

4. The father has a criminal history stretching back to 2010 when he was about 16 years old, including assaults, disorderly behaviour, criminal trespass and fighting. In 2012 he was found guilty of a variety of offences including assault police, trespass, aggravated assault, criminal damage and money laundering. He was sentenced to 12 months imprisonment, suspended after six months. He was charged with counts of assault and property damage in 2015 which did not, apparently, result in criminal penalties but an interim intervention order was issued. The father was not sentenced to another period of imprisonment until he was found guilty of the aggravated assault of the mother in 2019 mentioned above.

5. It is also noteworthy that in early 2017 the father was the subject of police involvement concerning another woman with whom the father had been in a relationship. The police material indicates that the father’s behaviour may have constituted an assault although he does not appear to have been charged. An interim intervention order was made against him. 

6. The father informed the court that he was recently charged with common assault as a result of a late night incident in C Street. He says he will plead not guilty to the charge.

7. The history of the parties before June 2019 is somewhat unclear.  Both used illicit drugs.  The mother says that when she met the father they were both illicit drugs users.  The mother said that her drug use consisted of amphetamine use, as did the father's, but over time the father began to use methamphetamine.  She said that in late 2017 when she was pregnant with the child she was assaulted on a number of occasions by the father, including being struck on the thigh with a tyre lever.  The police material produced on subpoena indicates that the mother complained to police that she had been assaulted by the father on five occasions between 29 September 2017 and 17 October 2017. There are photographs showing bruising on the mother and the father was later charged with assault.

8. In relation to these 2017 charges against the father, the mother told the police in a statement dated 11 June 2019 that she had been visiting the father’s home with the child between September 2018 and June 2019. She said:

   I could see that Mr Galaway was doing well, not on drugs, doing a Domestic Violence Course and was working.

9. The charges against the father of assaulting the mother in 2017 were, according to her, subsequently withdrawn by the police. It appears from the mother’s affidavit of 20 May 2020 that she participated in negotiations with the police prosecutor which saw the criminal charges withdrawn and an intervention order against the father confirmed.

10. The father told the family consultant who prepared a child dispute conference memorandum that his violence towards the mother occurred in the context of drug use and was "mutual".  There is nothing in the police material to support the claim that the violence was mutual.

11. It appears that the relationship of the mother and father broke down prior to or around the time of the child's birth and at the time the mother complained to police of assaults on her by the father.  The affidavit of the mother is unclear about whether any relationship resumed but she says that she facilitated the child spending time with the father while she was present between September 2018 and June 2019.  The father said that between January 2019 and June 2019 the child spent time with him on about 15 occasions.  The mother did not challenge that.

12. At the beginning of 2019 the father commenced a program of psychological group therapy with an organisation called D Therapy to address his substance abuse issues.  According to a report from that organisation the father completed a program of group therapy three times a week running over 20 weeks.  In a report dated 9 July 2019 the father was reported to have “presented as being very committed to the program and his recovery”.  The report contains some reference to the possibility of home detention so it appears that the report was prepared in contemplation of criminal proceedings.

13. The father also relied on a report from Mr E, a counsellor who specialises in counselling men who are violent to women.  Mr E said the father attended six telephone counselling sessions between June and August 2020.  Mr E was generally positive about the progress the father made in developing some insight into the effect of his violence on the mother.

14. The father's position is that while he has a history of illicit drug use, assault of the mother and, it appears from the police material, an incident of an assault on a woman on another occasion some years ago which resulted in an interim intervention order, he says that he has taken the steps to reform and change.  He says that he no longer uses methamphetamine.

15. The father returned a positive hair follicle test for methamphetamine in May 2020.  He says that he did not consume methamphetamine but his hair may have become contaminated with methamphetamine through contact with a woman who consumed methamphetamine or by attending a party where other people consumed methamphetamine.  A report from a forensic toxicologist was filed on the father’s behalf which canvassed the possibilities of contamination in the way claimed by the father.   The toxicologist said it was unlikely that he would have returned a positive test for methamphetamine as the result of close contact with another person but considered it was possible that the methamphetamine detected in the father's hair may have been a result of exposure to atmospheric methamphetamine through people smoking it at a party.  The evidence raised this no higher than a possibility.  However, the toxicologist did point out that there was no evidence of amphetamine in the father's hair which is a metabolite of methamphetamine, implying this might be expected if the father had consumed methamphetamine.  While I am unable to make a finding that the father deliberately consumed methamphetamine leading to the positive test, even on his version of events he was keeping company with people who did consume methamphetamine and I approach his evidence with a degree of caution.

16. As noted, the father has also recently been charged with common assault as a result of an incident in C Street.  He says he will plead not guilty to the charge.

17. The overall picture in relation to the father is mixed.  The evidence suggests that he may have continuing exposure to methamphetamine and physical violence.  On the other hand, he has engaged in some counselling for both illicit drug use and in relation to his history of violence towards women.  Whether the father is on the road to change and reform is unclear at this stage.

18. The mother says the father is a lost cause and the child will not benefit from any relationship with him now or in the future.  I am not satisfied that is so.

19. In deciding questions at an interim hearing, the court does not have the benefit of cross-examination and it is difficult or impossible to make findings on contested issues. A court making an interim parenting decision will usually attempt to proceed cautiously relying on uncontested material or giving appropriate weight to material that is plausible and likely. The legislative pathway is, nevertheless, to be followed. The best interests of the child are paramount and in deciding on the best interests of a child the factors in subsection 60CC(2) of the Family Law Act are the primary considerations. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is to be given greater weight than the benefit to the child of having a meaningful relationship with both of the child's parents.

20. In this case I asked Mr Tredrea, counsel for the mother, to say whether there was an unacceptable risk of harm to the child in spending time with the father according to the father's proposal of six supervised visits at a children’s contact centre.  As I understood Mr Tredrea’s submission he did not assert that the child was at risk of harm, abuse or neglect during such visits but rather that the question of whether the child was likely to benefit from a meaningful relationship with the father at any time in the future was in issue which should be left for trial.  He said that if the child could not benefit from a meaningful relationship with the father then no order for time should be made on either an interim or final basis.  Without suggesting that there is any legal onus resting on a party in parenting proceedings, I accept that if at an interim hearing there is evidence to conclude that a child is unlikely to benefit from a relationship with a parent an order for time should not be made. It is also significant in my view that, notwithstanding the conduct alleged against the father by the mother and the fact of the father's criminal convictions and admitted drug use, the mother had facilitated the child spending time with the father from September 2018 until June 2019 on a regular basis in circumstances where she appeared to believe that the father’s drug taking and violence were being addressed by him.

21. My present view is that while the father has a clear history of illicit drug use and violence against women there are some modest signs that reform and change is possible for him.  The reports from D Therapy, who provided therapy and counselling in relation to illicit drug use, and from Mr E, who provided counselling in relation to violence against women, were reasonably positive about the father and indicated that he had engaged genuinely.  This is not to ignore the significance of the positive methamphetamine reading in May 2020 and the father's present assault charge.

22. If the question of whether the child spends any time with the father is to be left to trial it will probably be at least another year before that issue will be decided and perhaps longer. 

23. The s.11F memorandum canvassed the issues discussed above, noting that the child’s developmental stage required stability and safety. The family consultant considered the mother to be child focussed and non-malicious. The family consultant summarised the mother’s views as being convinced that the father’s drug use and violence was unlikely to change. The father’s view was that the mother’s view of him was “from the past” and no longer accurate.

24. The family consultant was of the view that the father may benefit from long term drug and alcohol counselling to help him remain abstinent, noting the positive test for methamphetamine in May 2020 and a negative test in July 2020.

25. The family consultant recommended further drug testing of the father.  The family consultant was clearly of the view that evidence of the father turning away from drug use and violence was necessary in the long-term if the child was to benefit from a relationship with him.  The family consultant was nevertheless of the view that the child should spend some supervised time at a children's contact centre with the father. 

26. The family consultant observed that after a period of more than a year since the child had seen the father she would probably not recognise him.  This raises a question about the efficacy of six supervised and observed visits and the point of such visits. One might question whether such time spending is likely to produce any useful information about the child's relationship with the father, or more particularly, the father's capacity as a parent. Possibly a more desirable step and one more likely to produce results would be in some kind of therapeutic or supported context but there is not any proposal of that kind.

27. Re-introducing the child to the father in such a context after an absence of more than 12 months, or 18 months after waiting for a contact centre place, may not produce very much.  On the other hand, am also satisfied that it is unlikely to be productive of any harm to the child, psychological or otherwise.  I am also satisfied that the experienced staff of the children's contact centre are likely to identify at an early point if the child becomes upset or for some other reason the visit should not proceed. However, I am satisfied that a report following the child spending time with the father may provide some useful information about his parenting capacity.

28. Counsel for the mother relied on a decision of Berman J in Macey & Liddell [2018] FamCA 1027 as providing guidance on the correct approach to a case such as this at an interim stage. Mr Tredrea submitted that the facts of that case were very similar to the present case and the same result should follow, that is, no order for time.

29. In Macey the father had a history of violence and drug use not dissimilar to the father in this case.  However, there are some significant factual differences.  In Macey the father had a diagnosis of Antisocial Personality Disorder which affected his ability to manage anger.  He had not sought any psychological intervention or assistance despite a recommendation to that effect.  There was also evidence that the father in that case was non-compliant with conditions of his parole and had been remanded in custody at the time of the hearing.  Further, the child in that case had not seen the father for the previous five years.  Berman J appears to have been of the view that there was nothing to indicate positive progress by the father and much to indicate that his problems were entrenched and permanent. 

30. In my view, while the father in this case has a similar history of drug use and violence there are some positive indications that the father is, at least, capable of change.  He has engaged in drug therapy and counselling to deal with his history of violence against women.  In both cases his therapist and/or counsellor were of the view that the father had shown some commitment to the program.  Clearly he has a long way to go.  His positive test for methamphetamine in May 2020 and the more recent charge of assault in C Street raise very serious concerns about the father’s parenting capacity and his capacity for change. 

31. On balance, I consider that there are sufficient indications that the child may, if the father’s progress away from drugs and violence continues, benefit from a relationship with him.  This is very much a work in progress and the assessment may change.  Nevertheless, I consider there is sufficient justification for the father’s proposal to be adopted.  There is a long waiting list for time to children's contact centre, some five months I was informed, so the parties will need to enrol as soon as possible.

32. I also propose to make orders for further drug testing.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 17 September 2020