GARTH & SABOSKI

FAMILY COURT OF AUSTRALIA

GARTH & SABOSKI

[2017] FamCA 964

FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Application of the mother for final parenting orders in relation to her and the father’s child, aged seven – Where the father did not appear in Court and the matter proceeded on an undefended basis – Where there were serious allegations of family violence and substance abuse by both parents – Where the mother has a history of alcohol abuse but she is currently sober – Where there are concerns about the father’s mental health and substance abuse – Where it is found that family violence was perpetrated by each parent against the other – Where it is important that the child’s relationship with both parents be maintained – Orders made for the child to live with the mother and spend every third weekend with the father with oversight by the paternal grandfather.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the presumption against equal shared parental responsibility is rebutted by a finding of family violence – Where the evidence shows the parents are unable to communicate in relation to the child’s needs – Where the father has challenged the mother in relation to medical treatment of the child – Orders made for the mother to have sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father to re-open the substantive proceedings – Where the father did not attend Court for the final hearing despite having sufficient knowledge of the listing – Where it would be against the interests of justice to re-open the proceedings – Where the father was permitted to file written submissions in relation to the substantive proceedings – Where the mother was awarded costs for the father’s interim application to re-open the proceedings.

APPLICANT:

Ms Garth

RESPONDENT:

Mr Saboski

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

WOC

110

2014

DATE DELIVERED:

29 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

6, 7 and 17 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Rowley & Ross Lawyers

THE RESPONDENT:

No Appearance on 6 and 7 November 2017

COUNSEL FOR THE RESPONDENT:

Mr Alexander on 17 November 2017 only

SOLICITOR FOR THE RESPONDENT:

Acorn Lawyers on 17 November 2017 only

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lukes Law

Orders

IT IS ORDERED

That the child B (“the child”) born … 2010 live with the mother.
That the mother have sole parental responsibility for the child.
That the mother advise the father of any significant medical treatment which the child receives and of any counselling or therapy in which the child is engaged from time to time.
That the father spend time with the child, subject to Order 4, as follows:
(a)From 4.00 pm Friday to 4.00 pm Sunday on every third weekend; and
(b) Such other times as agreed between the parents.
That the father’s time with the child in Order 4 above does not commence until:
(a) The paternal grandfather provides written undertakings to the Court that:
(i)Each time that the father spends with the child the paternal grandfather will spend time with the father and child on each day, being Friday, Saturday and Sunday, including sharing a meal with the father and child on one of those days.
(ii)If the paternal grandfather has any concerns about the father’s mental state or presentation, then he is to forthwith remove the child from the father’s care and make contact with the mother, advise her of his concerns and make arrangements to return the child to the mother.
(b)The C Contact Centre is available to facilitate changeovers in accordance with Order 4.
That changeovers of the child, pursuant to these Orders, are to take place at the C Contact Centre at Suburb D.
Each parent is to complete and submit an application form to the C Contact Centre within seven (7) days from the date of these Orders.
The parents are to then do all acts and things necessary to ensure that they are placed on the waiting list for changeover of visits at C Contact Centre.
The parents agree to participate in any course, program and/or counselling session(s) as nominated or suggested by staff at the C Contact Centre in the lead-up to the commencement of the changeovers at the Centre, and the mother agrees to consider involving the child in any course, program and/or counselling session so nominated or suggested.
That the father is to be responsible for any payment requested by C Contact Centre for changeovers at the Centre.
That the father shall continue to submit to random urinalysis drug testing in accordance with the Australian/New Zealand Standard 4308:2001 procedure for the collection, detection and quantification of drugs of abuse in urine and/or alcohol within 24 hours of such request being received by him from the mother for a period of 12 months following the date of the making of these Orders, provided that no more than ten requests may be made.
That the father has leave to provide to any treating psychologist or psychiatrist a copy of the report of Dr E in these proceedings.
That notwithstanding any other Order, the mother may organise any medical, psychological or educational assistance for the child that she deems necessary without the consent of the father.
That the mother shall ensure that the child remain enrolled in the religious school in the Suburb F area throughout her school life unless otherwise agreed in writing by the parents subject to the father being solely responsible for all school fees and other expenses directly related thereto.
That each of the parents is permitted to liaise directly with the child’s schools, sporting bodies or extra-curricular organisations to obtain any necessary information about the child’s progress and that both parents are to authorise the schools, sporting bodies and other organisations to facilitate this.
That the mother is to provide any necessary authorities to the principal of each school attended by the child to ensure that the school forwards to both parents copies of the child’s school reports as they fall due along with all school circulars, newsletters and any invitations to any school activities which parents are invited to attend.
That neither parent is to physically discipline the child or permit any other person to physically discipline the child.
That the father’s Application in a Case filed 15 November 2017 be dismissed.
That within 60 days of the date of these orders, the father pay to the mother’s solicitors the sum of $500 by way of costs of the Application in a Case heard on 17 November 2017.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garth & Saboski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 110 of 2014

Ms Garth

Applicant

And

Mr Saboski

Respondent

REASONS FOR JUDGMENT

B was born in 2010. She is now seven years old. Since February 2014, her parents, Ms Garth (“the mother”) and Mr Saboski (“the father”) have been involved in litigation in relation to her parenting arrangements, firstly in the Federal Circuit Court and then in the Family Court of Australia.

THE HEARING

The matter was listed for callover on 10 April 2017, and, the parties being ready to proceed, it was listed for hearing for four days commencing on 15 August 2017.
On 15 August 2017, the father applied for an adjournment. The father told the Court that he had filed a review of the refusal of the Legal Aid Commission to grant him legal aid, that he wished a named legal practitioner to act for him in the hearing and that he was unable to make those arrangements until such time as his legal aid was confirmed. Over the objection of counsel for the mother and counsel for the Independent Children’s Lawyer (“the ICL”), the adjournment was granted and the matter was listed for hearing for four days commencing on 6 November 2017. In the course of discussion, the father indicated that the adjourned dates were not suitable to his nominated legal representative but the matter was listed over that objection.
When the matter was before the Court on 15 August 2017, the single expert Dr E was present, as it was anticipated that he would be cross-examined on that day. Dr E met with the father and the counsel for the mother and the ICL in the course of the day in an attempt to mediate between the parents and advise about appropriate arrangements for the child. Dr E’s observations of the father on that day, and the concerns he formed as a result of those observations, will be considered later in these reasons when setting out Dr E’s oral evidence given in cross-examination.
When the matter came before the Court on 6 November 2017, the father did not appear but forwarded to the Court a medical certificate indicating that he was unable to attend Court on 6 November 2017. The medical certificate contained no other details.
At the request of the Court, the ICL contacted the father and advised him that the matter would proceed at 10.00 am on 7 November 2017 and that, if he did not appear, the matter would proceed in his absence as an undefended matter. For more abundant caution, the Docket Registrar was requested also to contact the father by email and to convey the same information.
When the matter resumed on 7 November 2017, the father did not appear and the matter proceeded in his absence.
Dr E was cross-examined. Dr E recommended that the father’s time with the child be curtailed and that some form of oversight, ideally by the paternal grandfather, was appropriate. He also recommended that changeovers occur at a supervised centre so that the parents would have no contact.
After Dr E had given his evidence, the legal representatives of the mother contacted the paternal grandfather who had sworn an affidavit in the father’s case. Mr Saboski Snr agreed to appear before the Court by telephone. He appeared as the Court’s witness. No other witnesses were required for cross-examination.
Mr Saboski Snr agreed that he would undertake to provide oversight of the father’s time with the child and that he would, if necessary, remove the child from the father’s care and return her to her mother. In the course of his evidence, Mr Saboski Snr assured the Court that he had been observing the father and the child together for some years and that he had seen them relating happily and well together.
At the conclusion of the hearing, I made an order suspending the existing parenting regime for the child. These reasons will explain why it is necessary for the parenting arrangements to be changed.
Because the father did not appear and participate in the proceedings, there was no challenge to the evidence of the mother and these reasons proceed on the basis that the mother’s evidence is accepted.

THE FATHER’S APPLICATION IN A CASE

The matter was listed for the delivery of judgment on 15 November 2017 at 4.45 pm. Shortly before judgment was delivered, the father, by new solicitors, electronically filed an Application in a Case seeking orders to the effect that the interim orders made at the conclusion of the submissions in the final hearing be discharged and that the previous orders for his time with the child be re-instated. The father did not seek, by that application, to adduce fresh evidence or to re-open his case.
In support of his application, he sought to rely on an affidavit sworn by him on 15 November 2017 where he deposed to his difficulties in securing legal representation.
This application was listed on Friday 17 November 2017.
Counsel for the father then sought to re-open the father’s case and, specifically, to cross-examine Dr E.
Leave to re-open was refused and I indicated that reasons for that decision would be provided in the substantive judgment.
No enquiries had been made on behalf of the father to ascertain when Dr E might be available to be cross-examined or how much he would charge for his appearance. Nor had any enquiries been made about when the matter might be able to resume. The father did not propose to pay Dr E’s fees himself.
No proposal was made on behalf of the father to compensate the Legal Aid Commission for any further costs incurred if legal aid were granted to the mother and the appointment of the ICL further extended. The Legal Aid Commission has already funded the hearing.
The father’s application was opposed by both the mother and the ICL.
On behalf of the mother, her solicitor told the Court that she has exceeded her legal aid funding cap and that there is no guarantee that further legal aid funding will be available to her. The solicitor was appearing that day on a pro‑bono basis.
The father was well aware, from 15 August 2017, that the matter was proceeding to final hearing on 6 November 2016. When he was notified by both the ICL and the Court that the matter would commence on 7 November 2017, he had an obligation to appear, whether or not he had legal representation. He chose not to do so.
I accept that the father finds the proceedings stressful. I also accept the submission on behalf of the mother that she finds the prolongation of the proceedings stressful, in circumstances where they have been on foot since February 2014 and the final hearing, already adjourned in August 2017, is sought to be opened again and further prolonged.
Procedural fairness is not the sole privilege of the father. The Court must consider the interests of the mother and the ICL, and indirectly the child, and the interests of the administration of justice, of having these proceedings completed in a timely way. Four hearing days have already been thrown away as a result of the adjournment on the father’s application in August. There is no hearing time available for this matter until February 2018 but there is no certainty that those dates, in any event, would be dates on which Dr E would be available.
The father had every opportunity to attend Court on 7 November 2017 and cross-examine Dr E. He chose not to do so.
In those circumstances, he was not permitted to re-open his case.
He was, however, permitted to make written submissions in relation to the substantive proceedings.
A copy of the transcript of the evidence of Dr E, and a copy of the Minute of Orders sought by the ICL were given to counsel for the father and he was directed to file and serve any written submissions by 4.00 pm on Friday 24 November 2017.
In the event that either the mother or the ICL wished to respond to the father’s submissions, they were permitted to do so by 4.00 pm on Monday 27 November 2017.
It was necessary for judgment again to be reserved pending consideration of the father’s submissions.
The mother sought an order that the father pay her costs of the resumption of the hearing occasioned by his Application in a Case. Counsel for the father sought to include his submissions in relation to costs with his written submissions. That application will be considered later in these reasons.
The father filed written submissions in accordance with directions. Those submissions did not address the issue of the costs of the adjourned hearing.
The submissions, of some eight pages and 55 paragraphs, contained a wealth of material which was not in evidence before me.

HISTORY

Each of the parents makes serious allegations against the other. The mother alleges that the father has used marijuana excessively and has also used other illegal substances and she alleges serious family violence was perpetrated by him against her.
In the material available before the Court, the father denied the mother’s allegation in relation to violence except that he admitted that, on occasions when the mother was affected by alcohol, he was obliged to defend himself against her attacks.
The father alleged, and the mother admitted, that the mother abused alcohol and other illegal substances. It is the mother’s case that she has abstained from any substance abuse since August 2013.
Neither parent accepted that the other now abstains from substance abuse. The results of testing undertaken at the request of the ICL and evidence from material produced on subpoena by the police will be discussed.
Although I have accepted the evidence of the mother in relation to incidents which occurred between her and the father, there was also ample evidence that the mother’s parenting of the child, before August 2013, was adversely affected by substance abuse and, particularly, alcohol abuse.
The mother was previously in a relationship with Mr G and they have a daughter, H, who was born in 2000.
In 2002 the mother was diagnosed with major depression, anxiety, and a borderline personality disorder. At least by that time, the mother was drinking.
In October 2004, an Apprehended Domestic Violence Order (“ADVO”) was made for the protection of Mr G and H against the mother and in November 2004 the mother breached that order. She was convicted of the breach and placed on a good behaviour bond.
In 2006, the mother told her therapist that her use of substances was escalating. She had been using “Ice”. In July 2007, a discharge summary from the J Clinic records the precipitating factor for admission being “Polysubstance Abuse – alcohol, crystal methamphetamine, LSD, THS, speed, cocaine”.
On 8 January 2008, notes produced by the mother’s therapist record that the mother had relapsed over the Christmas/New Year period and overdosed. The mother had been drinking heavily. On 10 January 2008, she was admitted to the J Clinic following a polysubstance abuse relapse and remained there until 16 January 2008. She was readmitted on 25 February 2008 and remained there until 28 March 2008, again with a diagnosis of polysubstance abuse.
In January 2009, the father came to the attention of the police in relation to cannabis.
On 13 July 2009, the mother presented at Suburb F Hospital expressing suicidal ideation and reporting drinking heavily. The mother was assessed by the Acute Community Treatment Team and advised to seek assistance for alcohol use.
The parents commenced their relationship in August 2009. At the time they commenced their relationship, the mother admits that she was drinking heavily and she asserts that the father was also drinking. The mother says that they used cocaine together twice a week and that the father was smoking ten to fifteen bongs per day of cannabis.
On 20 November 2009, the mother was assessed at Suburb F Hospital Mental Health Unit and reported feeling manic, anxious and agitated.
The mother and the father commenced living together in January 2010.
On 22 February 2010, the police were called to an incident at the home of the mother and the father. The mother alleged that the father had grabbed her and thrown her to the ground then dragged her out of the unit by her ankles into the hallway. She alleged that he then let her back into the unit and punched her three times.
The mother alleged that she defended herself and struck the father. The police noted that the mother had injuries including red marks to her face, chest, left arm and a cut to her right knuckle and the father had a minor laceration of the upper lip.

The father was charged with assault. Those charges were defended by the father and dismissed.
On 8 June 2010, there was an ADVO application against the father listed in Suburb F Local Court for the protection of the mother, but the mother did not attend and the matter was dismissed.
On 14 June 2010, when the mother was six months pregnant, she alleged that the father kicked her in the stomach causing bruising. On 15 June 2010, the mother told a client about the incident and the client reported it to the police. The police attended the mother’s residence but the mother denied having been assaulted. The mother showed the police her stomach and they did not observe any injuries. The police spoke to the father and he denied any assault, but told the police that when he came home, the mother had been drinking and they argued and he took the wine from her.
The child was born in 2010. The child was retained in hospital and not discharged until 25 November 2010.
On 17 October 2010, there was an altercation between the father and his sister, Ms K. Each claimed to have been assaulted by the other. The paternal grandmother told the police that she had seen the father assault Ms K and the police noted that the father is “quick to anger” and appeared to have a tendency towards violence. The paternal grandmother refused to provide a statement in relation to the assault.
On 12 November 2010, the police were called after a report of yelling, screaming and swearing. The police formed the view that the mother was affected by alcohol and possibly by drugs. They noted that she was abusive and aggressive and she was arrested and taken by the police to stop a further breach of the peace after she refused to stop swearing and leave. The police then returned the mother to her home.
On 13 November 2010, the maternal grandmother took video footage of bruises on the mother’s body.
On 25 November 2010, the child was discharged from L Hospital. The Department of Family and Community Services (“DFCS”) visited the home shortly thereafter.
On 15 December 2010, the police were again called to the parents’ home. The police noted that the father had a small mark on the back of his head and the mother had a small bruise on her upper left arm. The mother was locked out of the unit and the father and the child were inside. The father alleged that the mother assaulted him, hitting him over the back of the head and he took hold of her arms and pushed her outside of the unit. Police noted that the bruises on the mother’s arms were consistent with the father’s version and that the mother was moderately affected by alcohol.
On 22 December 2010, Suburb F Local Court made an ADVO restraining the mother’s behaviour towards the father and the child.
In January 2012, the parents and the child moved to live in Suburb D.
In July 2012, the mother was admitted to the J Clinic where she remained until August 2012. On her discharge she immediately resumed consuming alcohol.
Between 8 August and 29 August 2012, the mother was admitted to the J Clinic, with a diagnosis of alcohol use and dependence, cannabis abuse and depression. The notes indicate that the mother admitted to drinking two litres of wine per day and smoking two to three joints of cannabis.
On 31 July 2013, the mother was admitted to M Hospital, where she remained until 21 August 2013. The mother admitted drinking one to two litres of wine “daily for years”, smoking one joint of cannabis daily for three years, and using valium, speed and ecstasy. The mother said that she had last used cocaine or ice some five or six years ago, but it was noted that she had commenced drinking the day after her last admission to the J Clinic in August 2012.
It is the mother’s case that, when she was discharged from M Hospital in August 2013, she joined Alcoholics Anonymous and that she stopped drinking from that time onwards.
The mother deposed that after September 2013 she noticed that the father’s behaviour deteriorated. He believed that his computer was being bugged and that the “Government is spying on me”. He removed the smoke detector because he thought it had a bugging device. He had trouble sleeping and accused her of having an affair.
The mother gave evidence of an incident in about September 2013 when she accidentally broke a window in their house. The father accused her of deliberately breaking the window. He grabbed her by the arm and told her that he was taking her to her mother’s home to live. The mother got into the car. The father told her that he was going to kill them both. He drove into the Royal National Park and told the mother “I am going to take you into the bush, kill you and bury you”. After a period of time, the father calmed down and apologised to the mother and they went home.
After that incident, the mother deposed that the father told her “I am going to kill you and the child if you leave”. The mother observed that the father’s behaviour escalated when he used marijuana. She described other episodes of bizarre behaviour.
The mother alleged that on 26 December 2013, the father came home intoxicated and was aggressive, yelling at her. The mother alleged that she ran out of the house and locked herself in the car, and that the father chased her and was hitting the car as she drove off. When the mother returned to the house, the father was not there but he returned an hour later, the mother alleging that he had used cocaine on that occasion.
The mother alleged a further incident on 31 December 2013 where the parties argued. The mother alleged that the father assaulted her and then threatened to kill her. The mother alleged that on that occasion the father threatened to kill himself and attempted to hang himself with a skipping rope. This was the event that precipitated their separation on 3 January 2014. The father was charged arising out of the incident. He pleaded not guilty and the charges were dismissed on 7 April 2014.
After separation, the mother and the child moved to live with the maternal grandmother.
On 7 February 2014, the mother commenced parenting proceedings in the Federal Circuit Court. Those proceedings were returnable on 4 March 2014. On that day, interim orders were made, by consent and without admissions by the father, for supervised contact between the child and the father. An ICL was appointed for the child. The supervision commenced at C Contact Centre on 26 March 2014.
On 9 April 2014, interim orders were made by consent for the child to live with the mother and spend time with the father, initially for one overnight period per week progressing to alternate weekends by 2 May 2014. Subsequently there commenced a sad cycle of allegation and counter allegation, each parent alleging that the child did not wish to be returned to the other and each parent, from time to time, withholding the child from the other.
In June 2014, the father was injured at work and he has since been in receipt of Workers Compensation payments.
In 2015, the parents agreed that the child would attend N School in Suburb D in 2016. The father agreed to pay the school fees which are about $950 per term.
Documents produced by the NSW Police, record that on 29 November 2015, the father came to the attention of police in relation to an allegation that he was using a website that he had created on which he offered to share drugs. The police viewed the website. Two women, who responded to the website, told police that the father had smoked methamphetamines with them. The women contacted a third party and there was an altercation between that person and the father about money, in the course of which the father alleged he was assaulted.
Since the child started school, there have been constant complaints by each of the parents about items of uniform not being provided or not being returned and, on a number of occasions, the father has withheld the child from school.
The ICL has, in accordance with orders, from time to time requested that the parents both undergo random urine analysis testing. None of the results returned by the mother have been positive for alcohol.

THE COMPETING APPLICATIONS

When the matter was listed for hearing, there were competing applications by each parent wanting orders that the child live primarily with him or her.
At the hearing, because the father did not participate, there was no application pressed by him. The orders which he sought were reiterated in the written submissions that he was permitted to file. In broad terms, he sought equal shared parental responsibility and an arrangement where the child lives with him every Wednesday night, each alternate weekend from Friday after school until Monday morning and for half of the school holidays.
After Dr E gave his oral evidence, the ICL prepared a Minute of Orders which reflected Dr E’s recommendations.
The mother then asked the Court to make orders in accordance with the ICL’s Minute of Orders.

THE FATHER’S COMMUNICATION WITH THE MOTHER

Annexed to the affidavit of the mother sworn 29 June 2017 is a series of text messages sent by the father to her between April and June 2017. Those messages were shown to Dr E and formed part of his consideration expressed in his oral evidence.
The texts are reproduced with errors as in the original messages.
On 13 April 2017, the mother texted the father enquiring when the child would be returned. He replied:
Well theres no real point is there when shes gottta be dropped off tommorrow anyway
Really i should be keeping her your cdt tests are positive a 1.3% cdt reading is 6-8 drinks minimum a day reading do u realise that
Your got 3 x 1.4% a 1.5% so your deinking quite a bit which cdt testibg to show a reading like that means drinking evey day for 2 weeks & anything over 1.3% needs hospitalisation for withdrawal
Haha i took them to a doctor at [M Hospital] actually to interprare
Put an urgent application in to the court and turn up this time
The mother replied to the effect that she wanted the child returned and the father responded:
Im not dropping her
Ill drip her off sunday at 12pm so u can have half easter sunday
Its pointless dropping her off now when im picking her up tommorrow and where inly near [Suburb O] station now
The mother again said she wanted the child returned and the father replied:
To bad
…
If ya wanna get smart ill keep her u can file an urgent application and ill get full custody yr drinking heavyly ya fool
I should off got custody over a year ago according to yr cdt test results
The mother threatened to go to the police. The father replied:
Get fucked the orders mean nothing if yr drinking read the fine print
…
Call the police i dont care and and either will they ya bozze hound
That is bullshit i took the results to a dr after court because my solicotor told me there quite high readings and i should get there opinion well 1.3% cdt result is 6-8 drinks a day for a minimum of every day for a period over 2 weeks thats how long before a cdt reading at 1.3% will register
Get ready stupid
Ill send you the biomarker cutoff that the dr at [M Hospital] gave me
The mother responded, “I don’t give a fuck what you’ve done or think you loser. Just bring my child back as per orders”.
The father texted:
Fuck off im withholding here now till court i was going to be nice but fuck it u asked for it
Go and have another wine with ya mother ya drunks
The exchange of text messages continued in a similar vein and ended with the father texting:
Cya
Personally i dont give 2 fucks if ya drinking but i dont want [the child] around u when u are because your too abusive u have black outs and u remember nothing and use the blame game to justify it
I love [the child] more than anything or anyone on this planet and its my job to protect her and stand up for her while she cant do that for herself right.
Thats your comeback for everything go get some help i want [the child] to be a part of both our lives stop being in denial your drinking heavly again just get some help again wats the problem you should want that
On the face of those messages, it appears that the father was sending texts to the mother while he was driving with the child.
The father brought no expert evidence to support his interpretation of the CDT testing. Dr E did not agree with the father’s interpretation of the test results.
There was a further exchange of messages on 20 April 2017, again about when the child was to be returned. The mother threatened to ask the police to do a welfare check. The father replied, “We wont be back till late tonight anyway so do wateva”.
In response to the mother’s statement that he was breaking the law, the father texted:
Really did u when u withheld her from me for 3 months ?
I already explained to u the police are not arbitors for the family law courts if u have a problem get [your solicitor] to file an urgent application its simple but get it right im breaking no laws
[Your solicitor] can start working for his legal aid money for a change
On Sunday 7 May 2017 the father sent a message to the mother saying, “Shes staying regardless of wat u say”.
The mother replied that the next day was a school day. The father responded:
Either drop her bag off or ikl buy her new stuff and ill inform the school ill be picking her up early from now on until court herr teacher spoke to me the other day so theres an obvious problem
…
So wat if shes got school i should be dropping her off at school anyway why would a person whos feels in danger of a person rather than eliminate the danger choose to be near them rather then never see them unless there is actually no danger they dont feel in danger noone whos afraid of someone given an option to not ever see them again choose to see them every fortnight unless there is and never was any danger all made up lies ?
Just drop her school bag out the front of mine. really i should keep her in my care then file an urgent application to the court along with 2 reports from doctors who specialise in the treatment of alcohol disorders with there opinions on the bio marker percentages in the cdt test results u have done so far. I think some questions need answering from the icl as well and asking for her to be removed from the case for not doing her job properly and im looking forward to it adios.
On Monday 8 May 2017 the father texted:
Since u didnt drop [the childs] bag off i couldnt take her to school so theres no point going to pick her up this afternoon she can stay with me again tonight your obviously drunk again as usual i dont think its a safe enviroment for [the child] to be in.
Oh and ill be going up centrelink and ringing csa telling them i have 100% custody today.
Youve had one too many wines centrelink have sent me a letter with the necessary forms saying i have 45% custody as of 01 feb 2015 they also said u have not done your tax return for 2013-2014 year
Your under investigation by the federal police for fraud i hope you relise
The messages concluded, “Fine ill just buy her new stuff and inform the school i will be picking [the child] up everyday early from now no until judge rees makes a determination after i submit the evidence”.
On Sunday 28 May 2017 the father told the mother by text that he would be retaining the child on Sunday nights “whether u like it or not”.
There were further text exchanges which I have not recorded here.
On Monday 5 June 2017 the mother sent a text to the father advising that the child was to have psychometric testing at school at a cost of $350 and asking if he would share the cost. The father replied:
no she’s not I’ll talk to the school
that’s rediclous kids don’t have iq texts at 6 years old they all do an aplam text that’s free the government runs that and Noone is told the results
stop fuking with her head I’ve paid next year’s school fees upfront I’ve spent $9000 on her education and u don’t even help her do her homework non of the homework sheets are signed by you I know yr plan trying to scam more money from Centre link I will be notifying them that it’s not to be done full stop pathetic
your trying to get her diagnosed as dislexic I don’t fuking think so. You shouldn’t have drunk 4 litres of wine every single day whilst pregnant and u wonder why I was tipping it down the sink. I will be making sure no test are done at the school or else where they need to be informed about yr drinking a cask of wine a day smoking cigarettes and pot whilst pregnant with the child your a real sick individual trying to get more money from Centre link using [the child] as a pawn no fuking way over my dead body is that going to happen in fact I’ll see to it that yr worse off now u wait and see discusting.
[the child] told me she week to the Dr’s last week when she had the day off school she told me the Dr just talked to her so u took her to a psychiatrist without my or the court permission I’ll be contacting me lawyer [the ICL] and the court tomorrow
I want to know the doctors name u took [the child] to on wensday as per the court orders say both me and the icl are to be notified of any doctors she sees remember it was drawn up by the judge because of the false accusations so I want to know now the doctors name she saw on wensday ?
I’ll be ringing medicare tomorrow and if you don’t tell me the doctors name IL put the urgent application into the court and will keep [the child] in my care until the court appearance and don’t think for one minute I won’t.
This chain of messages continued for 13 pages. In the course of the texts the father accused the mother of being “an unfit parent”, “always dumping her off with yr sisters yr mother you don’t even look after her you neglect [the child]”. He said that “the doctor who u took [the child] too needs to hear my voice before determing anything or I will sue her for imcompotance” and “the problem is with u and your mental health and your drinking and your low iq from drinking”. He stated that “u better not have her on any medication or crushing it up putting it in her food because I’m going to be getting every single test done”.
The father threatened to sue “every medical Centre in [Suburb P]” and to ring “every medical Centre in the Suburb F” and said “let’s see who has the last laugh u sick sick person”.
He called the mother a “deadbeat Alcoholic …” and said that he had just emailed all the medical centres surrounding Suburb P and would be following up his emails with a phone call so the doctors knew that they would be sued if they wrote a referral for the child. He again threatened to keep the child in his care “until the matter is settled in court”. He said “you are nothing but a wanna be your life’s fuked up so u wanna fuk everyone else’s life up because of it that’s not happening while I’m alive to [the child] u psychopath”.
He stated “my opinion is yr a drunk dead beat alcoholic that’s a fact”, and “it’s not an opinion wet brain”.
I have included these exchanges because they were of concern to Dr E.
Other than to say that he and the mother have been able to communicate in the past, and will be able to do so in the future, the father’s submissions did not address this issue.

DR E’S REPORT

Dr E, a consultant child, adolescent and family psychiatrist, prepared a report in the proceedings dated 20 May 2015.
In his report, Dr E concluded:
I observe that this young child is in a precarious circumstance.
The child’s situation is precarious, despite her having two parents who are each committed to raising her, each having significant capacity as a parent, and each being currently backed up by constructive extended family support.
My concern arises from the observation that each parent has a history of disordered function, and carries a vulnerability to return to disordered function, with potential acute risk of physical or psychological harm to the child, and potential ongoing risk of the developmental harm that results from inadequate parental care.
Whilst it may be that each parent persists at their current level of adequate functioning over the next 14 years until the child reaches 18, there is significant risk and it is perhaps more likely that one or other has brief or extended periods of reversion to dysfunction and risk.
There is the potential for either parent to have quite a precipitous shift from function to extreme dysfunction and risk, for example if the mother has an acute relapse into drinking, or the father an acute, aggressive and controlling reaction to a situation of conflict, or a reversion to illicit drug use and associated paranoid thinking.
I therefore feel that it would benefit [the child] greatly to maintain a meaningful relationship with both parents and both extended families. This will allow [the child] to gain from the strengths of each parent and to maintain the maximum network of supportive adults in her life, but most importantly will provide:
An “early warning system” (my words) of a slip into danger and dysfunction in either parent, because if [the child] is spending regular and substantial time with the other parent and extended family and has a secure and substantial relationship with them, [the child] is more likely to discuss any problems with a parent or member of either extended family and to seek help. Or, one of these other adults may notice something in [the child], to alert them.
The “backup” of the other parent as a known attachment figure to care for [the child] during any brief or extended periods that one parent is not functioning well. Without such a backup, if [the child] is placed in the care of one parent and does not maintain a meaningful relationship with both parents, I feel that there is substantial risk that [the child] might end up spending time in the [DFCS] alternate care system or in [DFCS] arranged kinship care over the course of her childhood and adolescence.

Accordingly, Dr E recommended that the child should ideally spend substantial and significant time with each of her parents whilst conceding that the benefit to the child of this arrangement needed to be weighed against the Court’s appraisal of risk in the care of each parent and in each household.
Dr E examined the particular vulnerabilities of each of the parents.
In relation to the mother, Dr E had the opportunity to speak to her treating psychiatrist Dr Q. Dr Q had been providing treatment to the mother since 2004 when she was first admitted to the J Clinic. Dr Q described the mother as having “borderline personality disorder, burning out as she’s getting older”, with “polysubstance abuse, mainly alcohol”. Dr Q said that “The mother is now quite a reformed character.” He said that the mother is still prescribed a mood stabiliser but is off all of her other medications and is not using any benzodiazepines. Dr Q was of the view that the mother had an insight into the extent of her problems with alcohol, she understood the severity of her alcohol problem and that she understood that she could not return to drinking.
Dr E reviewed the allegations of violence perpetrated by the father in circumstances where the father denied any history of aggression either in his relationship with the mother or at any other time.
Dr E concluded that the father “did bring a long standing vulnerability to aggressivity into the highly provocative context of the relationship with the mother, and that in recent years, paternal aggressivity has been observed in relationships outside of the parental relationship.”
The records reviewed by Dr E reveal that in November 1996, when the father was aged 19, he was noted by the police to be verbally aggressive and argumentative with the police, refusing police direction and using offensive language. The father was arrested. He was noted to be moderately intoxicated.
In January 1997 when the father was aged 19, the police were called to a railway station where the father was reported to be engaged in a physical altercation with a friend. The father was arrested.
In June 2005, the father was refused entry to a club because of intoxication. He argued and the police were called. When he continued to argue he was arrested and kept overnight in custody.
In October 2010, the police attended an incident where the father’s sister reported that he had pinned her against a vehicle and punched her. The paternal grandmother confirmed to the police that she had seen the father assault his sister but refused to make a statement.
Police observed that the father was “quick to anger … appears to have a tendency to violence”. In relation to that incident, Dr E stated:
In my view, the above incident is significant, in that the father was likely dealing with inappropriate or provocative behaviour in the paternal aunt (who was during this period recorded elsewhere to have psychotic symptoms, to be violent to the paternal grandmother, and to be misusing substances), but did so with apparent loss of emotional control and with assertive and much-more-than-required-to-defend-himself physical violence.
Dr E observed “Such a response is at odds with the father’s narrative of having maintained emotional control and having engaged in only defensive physicality in dealing with the mother’s inappropriate and provocative behaviour.”
Dr E noted that the mother had told a friend in June 2010, that the father had assaulted her whilst she was pregnant and told her that he wanted the baby to die, although the mother subsequently denied this to the police.
Dr Q recorded in August 2012, that the father “drinks intermittently and when he does is abusive towards [the mother]”.
In April 2013, the mother told a social worker that the father has “anger issues … controls when and where she goes out … no physical violence”.
Dr E noted that the independent evidence is that the conflict between the parents has often resulted in significant visible bruising on the mother. In February 2010, police noted that the mother had injuries to her face, upper chest, right arm and wrist and knuckle. Documents produced by DFCS include a notification during the mother’s pregnancy in 2010, reporting that the mother had been “seen out drinking with bruises all over her”. Childcare staff noted in September 2013 that the mother appeared to have a black eye. The maternal grandmother and the maternal aunt reported often seeing the mother with bruising during the relationship.
Dr E noted that the father told DFCS workers in October 2012 that the mother’s bruising occurred when she was attacking him and he was trying to get alcohol away from her. In addition the father said that the mother often received injuries from bumping into tables and chairs when she was inebriated.
Dr E noted that bruising did not appear to be a feature of the mother’s presentation in the years that she lived with Mr G, when her alcohol dependence was already quite well established. He stated “This suggests to me that this bruising may have resulted at least in part from an aggressive or controlling response in the father, rather than intrinsically arising from the mother’s behaviour when intoxicated.”
The mother described numerous incidents of violence to Dr E and he stated, “My impression was that this fear was genuine, and perhaps linked to the mother’s experience of intensity of paternal angry and aggressive response such as that observed by the police on the railway station when the father was aged 19.”
The mother described to Dr E an incident which she said occurred around New Year’s Eve in 2013, at a time when she was not drinking. Dr E recorded:
She said, “around New Years Eve, when the big incident happened … he packed up [the child’s] stuff, and his stuff, in garbage bags, and he put them in the car, and the child in the car … I was praying … I didn’t wanna believe he’d actually do it … I was trying to speak calmly … trying not to get at him … It was madness, I thought he might kill himself … or others … also, that night, he threatened to kill himself in the shed … (I remember) him dragging me out the back to the shed, with [the child], standing there crying … he made me stand at the back of the shed … he got a rope, he was holding it … he was threatening to kick it off … I didn’t react … then I copped it for not reacting … he was saying, ‘you’ll come and watch this … watch this’ … I was scared he might kill me then him”.
The mother had also feared that the father would take the child. She said, “he made threats, the whole relationship … that he’d take her, and move to Queensland … that I’d be left without her … in hindsight, it was ‘power and control’ … that’s all it was”.
Dr E commented:
If the mother’s narrative about the Christmas/New Year period as contained in her police statements, affidavits, and narrative to me is accurate, and if mother’s narrative about the day in September 2013 when the father drove the mother into the bush, became agitated, was repeatedly physically violent and threatened to kill her, is accurate, then this does suggest a vulnerability in the father to “snap” into an intensely angry, ruminative, retributive, intimidating and aggressive state, creating risk of lasting physical and psychological harm to the person/s who are the focus of paternal attention at that time.
Dr E noted that the mother linked the episodes of violence by the father to excessive use of cannabis.
In interview with Dr E the father denied most of the allegations. Dr E noted:
The father did admit to locking the mother out of the home if she was being recurrently aggressive, and to taking her keys if she had been drinking and was heading off to drive. Other times, she would be drinking, he would refuse to get her more alcohol, she would leave to go get more, come back and buzz the buzzer, and he would refuse to let her in. He described these acts with pragmatic rather than retributive tone.
Dr E noted that it is possible that the mother’s narrative of abuse had been constructed noting that she is recorded as having blackouts in Dr Q’s notes during her first J Clinic admission in April 2004 and also in more recent admissions.
However, Dr E suggested that information from other sources led him to believe that the mother’s narrative may carry at least some substance.
He noted that in December 2010, when the child was two and a half months old, the police were called by neighbours who heard the mother screaming saying that her baby was locked inside the unit. The father confirmed to the police that he had pushed the mother outside the unit before locking her out and she was observed to have bruises on her arms.
In November 2012, a “Risk Assessment Report” prepared by DFCS, raised concerns about intimidating, controlling and demeaning behaviour by the father towards the mother. The reporter from DFCS observed “relationship characteristics consistent with domestic violence”, adding that the father “fluctuates between being able to reason to rapidly becoming volatile, raising his voice, and refusing to participate in the … assessment or case planning process”. Dr E noted that the mother was observed to defer to the father, for example, when he told her to stop providing details to DFCS, she did so. DFCS also observed that the father spoke harshly to and about the mother, for example saying that the mother would never be able to stop drinking or that he will take the child away. The father was observed to continue saying such things even when the mother cried and asked him to stop.
Dr E noted that documents produced by police describe a number of occasions when the mother appeared to initially report violence and seek assistance and then retreat in a manner which, Dr E opined, was likely related to an experience of paternal intimidation or control. For example in October 2009, there was a call to police from the mother’s telephone and yelling was heard in the background. The police rang back and the mother answered saying that there was no need to attend. In June 2010, a friend reported the mother had told her of being assaulted by the father but when the police visited the parents’ home the mother denied any assault.
The mother told Dr E that she finally reported the father’s violence to police after she visited her AA sponsor’s house on a hot day in January, and her sponsor saw the bruises and insisted on taking her to the police station.
The mother’s daughter, H, told Dr E:
“[The father] is a very unstable person … he has major issues”. She recalled “him hitting mum … when the child was a baby … they were fighting … I took the child into my room … I heard yelling … mum was probably crying or something … and he was kicking mum down the hallway … he was kicking and pushing and stuff … he kicked us all out at 10.30 on a school night … we had to go to a payphone … and use my money … at a payphone … to ring grandma … mum had been trying to get her bag back … we were outside a bar … and I got onto grandma … and mum’s sister and her husband were coming … and [the father] came, and was making a scene”.
H told Dr E that she was frightened at these times but “I’d challenge him … I knew he wouldn’t do anything to me … or I’d tell my dad”.
H said that the father would “take [the mother’s] stuff …often … I’d tried to block that out of my head … the fights … he’d take her keys, and mum would be trying to get them off him”, and “I used to wake up and hear him yelling at 2am …‘who’re you seeing?’ … ‘give me your phone!’ … and he’d download her messages on her phone”.
Dr E stated:
I am concerned that the father may carry an inner working model of intimate and family relationships with women, which involves him taking the role of competent provider and protector of incompetent women, applying necessary control and force to manage their irrational behaviour.
I am concerned that the father’s behaviour in such contexts may be lent an emotive and thus potentially intense, retributive and aggressive element by the father’s grief and loss at his own experience of neglect in the care of an incompetent mother, then the loss of his younger sister, for whom he told me he played a large role as carer after parental separation.
I am concerned that the father may minimise the extent of his own aggression and violence in family contexts, in part because he may have become accustomed or desensitised to family violence during his recurrent childhood experience of danger at the hands of an aggressive and intrusive (and mentally ill) older brother.
Dr E noted that the relationship between the father and his previous partner had been problematic. The police records note eight involvements of police between the father and his previous partner between December 2007 and November 2008.
Dr E noted that in her affidavit sworn in February 2014, the mother said that when she left the family home in January 2014, she received a telephone message from the paternal grandmother saying that she needed to return to the house because the father said he was going to hang himself.
Dr E noted:
I observed that at interview, when the mother spoke of more day-to-day conflict with the father, she showed proportionate negative emotion, but when she spoke of her more intense fears and frightening or cruel experiences, she did so with a more dissociated and disconnected tone. In my experience, such a presentation is consistent with a “numbed” response to trauma, but this observed response in and of itself does not prove the veracity of the trauma narrative.

DR E’S ORAL EVIDENCE

Before Dr E was cross-examined, he was given copies of the parties’ trial affidavits and had read the record produced by the police in relation to the father’s drug use in November 2015 and records produced by the child’s school.
Dr E said that his recommendations, outlined in his report of May 2015, had changed because of a number of matters, primarily his observations of the father’s presentation and behaviour in August 2015 at Court; the tenor of the father’s text communications with the mother; the fact that the father repeatedly retained the child unilaterally and the fact that the records produced by the school after the father visited suggested to Dr E that the father was displaying paranoid thinking and aggression.
I will set out the whole of Dr E’s evidence about his reasons for his change of mind in relation to the child’s time with the father so that the father, who was not present, will have the evidence available to him. I note that the father was also provided with a copy of the transcript of Dr E’s oral evidence when he attended Court on 17 November 2017 for the hearing of his Application in a Case. The transcript commences with the cross-examination by counsel for the ICL.
MS K. REYNOLDS: Thank you, your Honour. Dr E, you completed your report back in 2015?‑‑‑Yes.
And one of the recommendations was for equal shared parental responsibility?‑‑‑Yes.

And do you recall on the last occasion the matter was listed for hearing, in August this year, that you were able to confer with myself, and the other parties, and give us your opinion, having read the further affidavits of the parents?‑‑‑Yes.
And on that occasion, was it your view then, that sole parental responsibility was more appropriate, because of that further material that you read?‑‑‑Yes. At the time, I was being asked about interim, sort of, recommendations, had the court considered the same on the day, and it was my view, at that time, even on an interim basis, that sole parental responsibility was an appropriate course of action.
And was that partly because of the evidence about the father not cooperating with the psychometric testing, that the school wanted to do for [the child]?‑‑‑That was part of the reason, yes.
Was it also partly because of the denigrating text messages by the father towards the mother?‑‑‑Mostly really, about if the court accepted those messages, that the tone and content of those messages. In some ways, a parent being cautious about, you know, over‑testing of a child, or the possibility, which does occur in our society, that once you’ve done the test, you know, someone wants to put – give a label or prescribe a medication. In some ways, the father being cautious about that, I wouldn’t necessarily criticise. But I was mostly concerned about the tone and content of those texts, and if it was accurate, what was described there in the father repeatedly unilaterally keeping the child, and also making various threats to the mother.
And was your concern too, about the father keeping the child out of school on Mondays, when he kept her for the extra night on Sundays?‑‑‑I suppose, yes. I mean, that’s not necessarily specifically to do with some parenting responsibility, but I was concerned about that, and I was also concerned about what I read in the school – the subpoenaed documents from the school, that the father appeared to have some evidence of paranoid thinking and aggressivity when he met with the school, for the first time, about the testing.
And were you concerned about the text messages, where the father said he would ring every medical centre in [Suburb P] and [Suburb F], and threaten to sue them?‑‑‑I was concerned, in two ways, about those. One is that the father made a lot of threats of action, which don’t appear to have then followed through. For example, you know, I’m going to – he made various threats about getting expert reports about CDT, about commencing court proceedings. Each one of those threats would have created significant – potentially created significant concern and distress in the mother, and yet he seems to be willing to make those threats, without then following through. Obviously, had he rung every – that was one concern; secondly, had he acted on that expressed intention and rung every medical centre, that’s potentially breaching the confidentiality of the child, it is creating a lot of nuisance and distress, and it might have disrupted the child’s actual treatment, if she had found the relevant centre.
And did those matters, that you’ve spoken about, also impact on your recommendation for how much time [the child] should spend with the father?‑‑‑Yes. Just quickly, about the father’s reaction to the testing, the mother gives evidence in a text, that she did inform the father, but it was, sort of, the day before the testing, and as a fait accompli, like, this is going to happen. If the court accepts the mother’s narrative, that the father overall was difficult and reactionary and paranoid, and I think that probably is the case, then her being, sort of, cautious to tell the father well in advance, because he would probably make a big deal out of it, and she thought the kid really needed testing, and the kid probably did, I think, is understandable. If a court accepted the father’s narrative that, you know, he was a reasonable bloke, then you could argue that the mother contributed to that difficulty, by not informing him until the last minute. But sorry – you had asked me about time?
Yes?‑‑‑Look, I am – I do have a number of concerns about the father’s functioning, and risk, and, I suppose, that contrasts with what appears to be sustained good functioning in the mother, so I did my interviews in March 2015, so – in error, I think the report says May, but it is actually March, so that’s now two and half years ago. I am concerned, I suppose, in a sense, things have gone in two directions. The mother seems to have maintained a state of high functioning, and I suppose that solidifies from 18 months’ sobriety, to three and a half years’ sobriety, and the father appears to have stagnated, and perhaps slipped backwards, from what I can see, of what I’ve read he hasn’t been able to return to work, he doesn’t appear to have, sort of, re‑connected with say, work, or a new partner, or anything like that, and his behaviour towards the mother appears, if anything, to have worsened, rather than improved. And I am concerned about the police documents from November 15, suggesting that he was putting his name up on a website at that time, to share use of stimulant drugs. Can I ask, this is, I suppose, a legal question, when I was involved in coming to court on the last occasion, because the father was self‑represented, I interacted with him. Do I need to sort of take out of my head any content of those interactions, or can they form part of, you know, the information upon which I make recommendations?

HER HONOUR: [Dr E], they can, and should, form part of the information that you have, but it would be useful to me, if you would describe what it is that the father said, or did, that you’re taking into account, because of course, I wasn’t present?‑‑‑Is that yourself, your Honour?
Yes?‑‑‑Sorry, I wanted to make sure. Your Honour, basically what happened, was that outside the court, there were various, sort of, discussions, as there usually are, between the representatives, and between the parties, if they’re self‑represented, I observed that the father was quite agitated and distressed, which I suppose I didn’t read too much into, because that’s understandable, you know, in these hot, sort of, emotional contexts. But part of what he was doing was presenting – seeking to present to me, sort of, information that he had in his hand, that he felt was important, and I was mostly focused on, I suppose, the issues at hand before the court. But, he wanted to show me the mother’s CDT results, and I had read in the mother’s affidavit, his detailed texts claiming that the CDT results, you know, were not clean, as the mother suggested, and when I was speaking with him about those, and suggesting – I did actually say to him that I hadn’t been particularly alarmed by them, he expressed a concern about the possibility that the mother might have links to people in the drug – in the, sort of, pathology laboratory, and, you know, that there may have been some process of conspiracy involving producing false results. Now that’s, in the big scheme of things, in some ways a small piece of information, but in the context of the mother’s report that’s discussed in my report, that towards the end of the parental relationship, the father had some paranoid ideation about things like video cameras in the smoke detectors, and so on, and also, some of the father’s texts to the mother, about issues like child support, and tax, and police investigations. That did concern me, and the father’s overall level of agitation, and his inability to settle himself, in order to take part in the proceedings, also. It was a real struggle to settle himself in order to take part in the proceedings, also concerned me, in that whilst distress is pretty common in such settings, I find that usually, even quite – even a person with – who struggles to manage their own emotions, will pull themselves together, because of the immediacy of the high stakes of the parenting issues at hand. So, I suppose those would be the factors, your Honour, that I would consider as relevant.

Thank you?‑‑‑So look, coming back to answering that question about time, even though the police report is from late 2015, which is now almost two years ago, not that my report is magic, but I would imagine that, considering the parenting stakes, the father should have taken note of what I had said in my report, and perhaps got some assistance to do so, and I have said in my report that, considering the father’s history, he really shouldn’t go anywhere near stimulant drugs, and yet he appeared to be doing so, three months later, or four months later, in quite a casual way. And, I note his history since then, of initially not returning some urine tests, but then, sort of, handing them in all at once at court, and they had been taken quite well, but then, I understand, not returning the most recent one, and that makes me concerned about safety for [the child], with regard to the risk of the father returning to stimulant drug use.
MS REYNOLDS: And, is it the case that you wouldn’t support the existing arrangement, of alternate Fridays to Sundays, and every Wednesday?‑‑‑Yes. I mean, I tend to answer sometimes in terms of if the court finds, obviously the court doesn’t have the option to – of examining the father, on this occasion, but when I wrote my report, I suppose, my fundamental thesis, that I put forward, was of a child in a precarious situation, with two parents who each have pretty concerning vulnerabilities, but also were coming forth into some strengths. I suppose, I would change my formulation now, because it would appear that the mother has built, both within herself, but then within a pretty stable interpersonal environment, considerable strengths, whereas the father appears more vulnerable now than he did when I saw him. And added to that, I think the mother’s strength is going to be potentially defrayed, if she has to deal with the sort of paternal behaviour that is – that I would observe in those texts. So, yes, I think, at a minimum, there needs to be quite strong protection for the mother, for example, sole parental responsibility, ironclad rules about the beginning and end of time, no, sort of, one night in the alternate week, so that there’s extra opportunities for drama from the father. But, I must admit, I would lean towards a more conservative approach, such as the father’s time being reduced, and also potentially needing to be in the presence of another person, that the court might trust, such as the paternal grandfather, or another relative, if that person can be found. It would be ideal if it didn’t have to be professional supervision, because that’s expensive and complex over time.

So, if, in terms of involving another person, such as the paternal grandfather, would arrangements, so something like [the child] to have a – one meal with the paternal grandfather during any time? Would that address your concern?‑‑‑I remember that’s what we discussed, in terms of the interim orders, that were being talked about. The reason I’m hesitating, is that we don’t have a, sort of, a broader sense of how the father is functioning at the moment. If I can ask a question. From what I can see in the documents, I can’t see that the father has put forth evidence about his own seeking, sort of, mental health treatment, or input, over time. I think he had seen a psychologist at some time in the past, but I don’t think there’s anything recent in that regard. But I’m – that’s a question, not a statement.
There was a mention in his affidavit that he was seeing psychologist, and that was at paragraph 46 of his affidavit. I will just read that to you. Doctor - it says, “[Dr E] recommended I consult a psychiatrist. I’ve not been able to obtain consultations with a psychiatrist as this was beyond my financial means. I have however consulted a psychologist named [Ms R] who was employed by [C Contact Centre] at [Suburb D] and also I have seen a psychologist named Mr [S]. My consultation with Mr [S] was via a mental health plan that my treating general practitioner provided”. So, this is the father’s affidavit, sworn in March 2017?‑‑‑Yes. Thank you.
And the – we do have records from Dr [S], or – yes, Dr [S]. That was – they were produced in July this year, late July, and it shows there was a consultation in December 2016, sorry, two consultations in December 16, two in November 16, and that seems to be all?‑‑‑Thank you for that.
So, that was up to July 2017?‑‑‑Thank you, for that. And, I suppose, one comment I would make about that, is one that I put forward in paragraph 129.1 of the report, which is that, one of the reasons for suggesting that the time, the majority of the time with the mother, rather than the father, was that I think the mother’s difficulties are known. They’re pretty obvious, she has acknowledged them, she has sought treatment for them. The father’s difficulties are harder to pin down, and I think he has got less insight, or less willingness to discuss them. Definitely, he was quite minimising, at the interview with myself, at the time I produced the report. So, look, I think, at a minimum, I would suggest that the time occur in the general presence of another. Now, obviously, the court doesn’t have the benefit of seeing the father’s father either, but there may be an ability to get undertakings, because it would appear that the father’s father, and his partner, are quite a stabilising and positive influence for the father, and it would appear that that relationship has persisted, and that the father living, sort of, on a property in the same – on a separate dwelling on the same property of his own father, has been beneficial for him, and I think that some requirement for there to be something like, at least a meal each weekend, or something, would be a minimum. If the court carried a greater level of concern, and some of that would be hearing from the mother, about any specific concerns she is raising, I suppose, at the other extreme, would be something like, just daytime time, where changeovers were to that person, say the paternal grandfather, or his partner, and where the entire time was spent, you know, in their physical presence. I was about to say – one comment I would make is that, even at the lighter end of that, if you were going to stick with full weekends, I would – definitely recommend getting rid of that little one day, or whatever it is, on the alternate week, because I think two extra changeovers, in the context of what would appear to be quite paternal – paternal – quite immature and partisan attitudes in behaviour ,will create stress for the child as she gets older. And, also, what would appear to be paternal, sort of, immature and externalising behaviours, of things like uniforms and money, and keeping [the child] extra time, would suggest to me that we don’t want to double the, sort of, circumstances, where those things can occur, and double the stress for the mother. Part of me thinks about extending to one in three, not one in two, because one in two is even, and if [the child’s] doing something, like as she gets older, organised activities that require responsibility, organisation, maturity, prioritising the needs of [the child], then if she does end up missing some, in dad’s care, that’s only one in three, whereas if it is one in two, that’s harder. So, look, those would be my thoughts, but I’m happy to be asked about those thoughts.
And when you spoke about the possibility of one in three, were you suggesting that be with Friday to Sunday?‑‑‑Well, that’s where I’m – I don’t want to be more exact than I can be as an expert – part of me, a little more conservatively, considering the father’s sort of agitated presentation a while back, considering the evidence of some paranoid ideation, and the evidence of some stimulant use, which really concerns me, particularly if the court accepts the mother’s narrative about the more severe aspects of the paternal family violence during their relationship, that would lead me more to, like, a full day, you know, Saturday morning till Saturday evening, or Saturday early evening, with handover to someone who isn’t the father, and perhaps that time spent in the presence of those people. I suppose on the other hand, what leads me towards keeping the whole weekend, is it did appear to me, when I met [the child], that she valued the time with her father, and the mother confirmed that. The father, even when I saw him in his agitated state, a while back, you know, clearly was expressing his real love, and valuing of that time with [the child]. He does appear to have the backup of his parents. So, it is beneficial for [the child] to know the father. So, as I said, I’m a bit torn about how much time, but I am suggesting that one in three would be better than one in two, to give [the child] a foundation of time, with the mother, and part of my shift in that regard would be, in my report, I recommended, I gave quite detailed recommendations of what might be expected of the mother, in terms of input ion (sic) the long term from a psychiatrist, and what to do if she relapses. At the time, my recommendation was that, if she relapsed, she could inform everyone, and [the child] would spend more time with the father, until she was better. But I would actually feel now that that contingency of the mother relapsing, would be better dealt with within the maternal extended family, for example, those orders I recommended about the maternal grandmother, or maternal aunt, continuing to play a role in terms of regular telephone time, and regular face to face time, and that if the mother relapsed, [the child] spent greater time in the care of either the maternal grandfather, or the maternal aunt, until the mother recovered, and had her usual time with the father, rather than in that time of crisis, shifting over to the father’s care, because I would be concerned about the father’s parenting, if placed in that setting, and his – the risk of him using such a circumstance for partisan reasons, and acting in a way that he might institute court proceedings, but the history would suggest rather, that he would just act unilaterally, and then the mother and the grandmother would have to institute court proceedings.

HER HONOUR: Dr [E], it is Justice Rees. I’m in a position where I don’t have the paternal grandfather here, to give me an undertaking, or any evidence about willingness to supervise. I have no confidence that [Mr Saboski] would agree to his father being a supervisor, or indeed to anybody being a supervisor. And it may be that the imposition of supervision, would lead to the child not seeing her father at all. The second part of what I would like you to consider is this, that it had occurred to me, as I was reading the material, that all of the difficulties in relation to, firstly, the mother’s evidence of [the child’s] appearing now to be becoming reluctant to go to her father, and the difficulties in relation to school withholding, and uniforms, and all of those things, might be able to be cured if he were to collect the child on Friday afternoon from school, take her back to school on Monday morning, so handovers and uniforms, and such, were not an issue. I had those considerations, not knowing about your concerns about [Mr Saboski], arising out of your interaction with him in August. But it seems to me that, any arrangement where [the child] is passed between the mother and the father, is simply going to heighten [the child’s] anxieties. And, it is perhaps the case, that I’m looking at the two quite stark alternatives. One of them is no contact, and the other is every second or third weekend, from Friday to Monday. Can you give me your thoughts about that process, as it were?‑‑‑Your Honour, thank you so much for that – for putting that to me, because you can hear me sort of vacillating between those extremes also, and partly, my vacillation, I think, is what I would call a concern about paternal personality immaturity. You know, there’s these big risk items, like his potential for drug use, paranoid thinking, and so on. But in some ways, the more ordinary risk, that’s still a very significant one, particularly when the mother carries a history of serious trauma from the father, is just his immaturity.
Like, when one reads those texts, they’re so gratuitously cruel. You know, things like, “Well, I will just keep her and you can - you can go and get an urgent order, you know, next week. You can do this tomorrow.” The willingness to really just dump on the mother without thought or perhaps - I was about to say without thought for her distress but perhaps with a desire to create distress and over such fickle things as uniforms or whatever. That’s partly why I’m sort of - I feel that orders need to either take into account paternal immaturity or challenge him to be more mature and one ‑ ‑ ‑
Well, doctor, can I just interrupt you there?‑‑‑Yes. Yes. On the last occasion when the matter was before the court, I took [Mr Saboski] to task about the tone of his texts and also about the withholding the child from school, and I’m sure that Mr Cairns will correct me if I’m mistaken, but there seems to be no evidence that he has continued either behaviours after I gave him something of a dressing down?‑‑‑Yes. Yes. Yes. And that is encouraging, your Honour, in the sense that that would suggest that he has demonstrated there a capacity to respond to quite concrete boundaries which might suggest that he will be better with final orders than with anything interim. But, in my experience, what I’m terming immaturity that was shown in that behaviour comes out in other ways, which is partly why I’m thinking of something like 1:3 rather than 1:2 because it benefits a kid to know a parent, if they can, even if they are a bit immature or whatever but you don’t want to do it in a way that disrupts their life too much. Coming back to what you were saying, your Honour, I definitely think that if one gets rid of the mid-week one reduces the risk of those sorts of conflicts over uniforms and things. Your Honour, were you suggesting Friday to Monday, because obviously that does involve some uniforms and school attendance?

Yes. Yes. I was?‑‑‑Or were you suggesting something like drop back on Sunday night? Because that’s the other sort of option if you’re really worried about his ability to get his act together to get the kid to school.
No. I was thinking along the lines that if he had to take [the child] to school on Monday then there wouldn’t be an issue about uniforms because she would have arrived in her school uniform and could go back to school on Monday in a school uniform?‑‑‑Mm.
And, as I said to you, I don’t understand there’s any evidence that he hasn’t been able to get [the child] to things if he needed to?‑‑‑Okay. Okay. I’m pausing because I think that depending on the court’s aggrieved concern, I would agree that it would be - it would be a loss for [the child] to have no time but I do feel that the - some - some clear undertaking from someone other than the father to be involved in the sort of ways I’m putting forward. It’s not - it’s not supervision that’s in the general presence of and to cut the visit short and to return the child if there’s concerns about him - the father not being able to function is required. One option would be to, seeing the father’s not here, make the order for time but to make very clear what hurdle or hurdles need to be jumped in order for that time to proceed and I think it’s likely that the father, if those hurdle or hurdles are clear and appear to be reasonable, would proceed to jump those hurdles in order to be able to proceed with time.
And what hurdles, specifically, are you suggesting?‑‑‑I suppose I’m talking about there an undertaking for the paternal grandfather and/or his partner, depending on, you know - of the mother might - ..... give evidence about that, but the paternal grandfather and/or his partner similar to what was put to me earlier that they share a meal with the father and [the child] during that weekend and that they - you know, that weekend starts on a Friday, doesn’t it? That one or both of them spend some time with the child and father on the Friday and share a meal at some stage during the weekend and I’m just struggling to make the words as clean and simple as possible. That they undertake to just ensure the wellbeing and safety of [the child] and that if they have concerns to assist and/or to return [the child] to the mother early.

And so that I’m clear, is it your recommendation that if the paternal grandfather and his partner are not prepared to give that sort of undertaking, there be no contact?‑‑‑Well, I think that the alternative then would be - I think would be professional supervision because we’re really looking at a situation where ongoing drug testing is not going to be feasible or realistic, so we’re really looking up at the back-up of another human being. I suppose now your - I don’t have expertise in legal matters but you - and I don’t want to drag things on but you could leave open - I don’t know if it is possible to have a mechanism where exactly who that person would be was dealt with at a later date but I really - my short answer would be, yes, I’m suggesting that if the father cannot come forth with such an undertaking from his own father or the father’s partner or someone else acceptable to the court, that there be no time except for professionally supervised time.

Ultimately, Dr E said that the position of the parents had changed since he saw them in 2015. The mother has been able to maintain a high level of functioning whereas the father’s functioning had deteriorated.
Dr E did not support a continuation of the existing arrangements for the child although he said it was important that the child maintain a relationship with her father, provided that appropriate safeguards were put in place. Those safeguards included supervised changeovers so that the child did not have to experience the parents meeting face-to-face, and some form of oversight, preferably by the paternal grandfather, of the child whilst in the father’s care.
Dr E did not support a continuation of overnight contact if no oversight was available. He also recommended that the current arrangement where the child spends alternate Wednesday nights in the care of the father be stopped and that the weekend visits be changed from fortnightly visits to one visit every three weeks.
Dr E also reconsidered his opinion about how the child should be cared for if her mother relapsed into abuse of alcohol. Whereas previously in 2015 he had been of the view that her father should care for her in those circumstances, he said that he was now of the view that the better course was for the child to remain in the care of the maternal family and for the visits with the father to continue.
In relation to Dr E’s evidence, on behalf of the father, it was submitted:
The father submits that at the previous hearing that did not proceed the father was unrepresented. The father was extremely distressed at not having legal representation at the hearing. It is submitted his behaviour is consistent with not being legally represented and supported at a Final Hearing.
In relation to Dr E’s concerns about substance use, the father submitted that the material produced by the police was historical and that his urinalysis reports do not reveal substance abuse.

DISCUSSION OF S 60CC FACTORS

I accept the evidence of Dr E that the child needs to have a relationship with both of her parents.
I also accept that it is necessary to safeguard the child from the effects of the negative aspects of the personalities and behaviours of each of her parents.

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

Dr E decided not to ask the child about her views. He considered that, having regard to her age and to her presentation on interview, it was not appropriate.
However, Dr E observed, in 2015, that the child engaged positively with both parents and, at the time he interviewed the family, both parents said that the child looked forward to spending time with the other.
Dr E observed that the child’s apparent wish was to remain engaged with both parents.
The mother deposed in her recent affidavit that the child is expressing a wish not to spend time with her father. It would appear that, as the hearing approached, the level of hostility between the parents had escalated and it may be that any reluctance which has been expressed by the child is a product of her having experienced that hostility at changeovers.
In any event, I accept the view expressed by Dr E that the Court’s appraisal of the child’s developmental needs and the risks posed by each of her parents must outweigh her views.

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

Dr E reported:
When I saw [the child] with the mother, [the child] presented as connected with and responsive to the mother, and I observed [the child] to turn to the mother to seek acknowledgement, comfort and guidance.
On the various occasions during the day when I came out into the waiting room, [the child] was in the proximity of the mother, and being cared for by the mother. … she showed reliance on the mother, in that she climbed onto the mother’s lap in order to watch me.
The mother provided direction to [the child] during the interview, in terms for example of entering my room, or being allowed to play, or to pack up, and [the child] accepted direction and was responsive and obedient to the mother, with apparent respect but not fear or vigilance. The mother showed physical comfort to [the child] when needed, for example, when [the child] climbed onto her lap.
…
This picture of [the child] bringing her needs for security, comfort or acknowledgement to the mother and the mother meeting those needs, but [the child] also being comfortable to play in the proximity of the mother, but intermittently referencing the mother whilst playing, suggests the formation of a secure attachment between child and mother.
In relation to the maternal grandmother, Dr E commented:
[The child] has an established and longstanding relationship with the maternal grandmother, who cared for her many or most weekends of much of her life, and with the maternal half-sister, with whom she has lived for substantial portions of her life. [The child] has not had an established substantial relationship with the paternal extended family.
Dr E further noted:
The maternal grandmother is a reliable support to the mother, and can augment the mother’s capacity, mitigate risk associated with maternal relapse into alcohol dependence, and provide any necessary monitoring, supervision, or alternative care during any future periods of maternal dysfunction.
Dr E did not observe the same level of attachment between the child and the father but he observed a comfortable relationship.
However, Dr E said in his oral evidence that the behaviour of the father, as observed by him in 2015, was quite different from the behaviour he observed in August 2017.

(c) 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;

The regime which Dr E recommends will have the effect of reducing the time that the child spends with her father.
However, I accept Dr E’s evidence that this reduction is necessary for the reasons he expressed.
The time that the child spends with her father will be sufficient for her to maintain a meaningful relationship with him.
The oversight of the paternal grandfather will ensure her safety.
The imposition of supervised changeovers will protect the child from the patent hostility demonstrated by her parents towards each other.

(d) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

In his report, Dr E stated that in his view, the mother had an “Alcohol Use Disorder, Severe, In Sustained Remission”. He also noted that the mother has experienced a benzodiazepine use disorder of moderate severity which he noted was also in sustained remission.
Dr E noted that his impression is that the mother does not have a current cannabis (or other illicit drug) use disorder.
Dr E agreed with Dr Q that the mother appeared in the past to have met the criteria for borderline personality disorder, but he stated that she does not present currently with this pattern of personality functioning and he did not see evidence of her having done so over the past few years. Dr E stated that:
The mother presented at interview as a woman with reasonable personality functioning.
She demonstrated empathic attunement to family members and [the child], and reasonable reflective functioning, that is an ability to step back and to think in a balanced way about her own thoughts, feelings, motivations and actions, and the thoughts, feelings and motivations of others.
Dr E stated:
[Dr Q] felt that the mother’s borderline personality disorder had “burnt out”, which is a phrase sometimes used to described persons who show personality disorder features in their early to mid-adulthood, but appear to mature in personality functioning over time, such that the disorder “burns out”.
Whilst there are a proportion of persons with substance dependence and personality disorder, where the personality dysfunction persists or even worsens when sobriety is achieved, there are a significant proportion where a normalisation of personality function is observed with sobriety. I think it likely that the mother belongs to this second group.
Dr E reviewed the father’s family history and concluded that he had a strong burden of genetic risk for psychosis. He stated:
I note the father’s strong family history of psychotic illness. That is, the father has a brother and a sister with established psychotic illness, in addition to his mother having a history of substance misuse and recurrent self-harm attempts, and another sister who died by overdose of opiates.
Dr E was of the view that, if the father had been using cannabis regularly as the mother alleged in 2013, it was possible and perhaps likely that he had developed a drug induced psychotic illness which, Dr E was concerned, would markedly increase the risk of paternal aggression towards others, including the mother.
Dr E stated “It would be extremely unwise and risk-amplifying for the father, with his strong burden of genetic risk for psychosis, to return to any future use of cannabis or in particular stimulant drugs.”
Dr E concluded:
Whereas I feel quite confident in affirming the mother’s capacity and low risk whilst she remains sober, I am less certain about the father’s capacity and (sic) over time, and the relative influences upon that capacity and risk.
I am concerned that the paternal vulnerabilities discussed above may acutely or ongoingly disrupt the father’s parenting capacity.
In his oral evidence those concerns were affirmed.
Dr E expressed particular concerns about the father using illegal drugs, having regard to the father’s peculiar vulnerabilities.

(e) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

Before August 2013, the mother is strongly criticised for her alcohol abuse and its effect on her ability to care for the child.
After August 2013, the evidence is that the mother has maintained sobriety and demonstrated her commitment to the child’s welfare.
The father has demonstrated a fierce commitment to his responsibilities as a parent and to the child’s welfare but his judgement has been, at times, affected by his unshakeable belief that the mother continues to misuse alcohol.
He appears unable to understand that his ceaseless denigration of the mother is harmful to the child in that it distracts the mother’s attention from the child and her parenting.
As Dr E explained, other actions taken by the father, although the father considers his attitude to be justified, in fact are damaging to the child’s welfare.

(f) any family violence involving the child or a member of the child's family;

The mother makes serious allegations relating to violence perpetrated upon her by the father, particularly in the latter part of 2013 after she stopped drinking.
Because the father did not participate in the proceedings, her evidence was not challenged.
I have regard to Dr E’s analysis of the evidence relating to the father’s behaviour as demonstrated in the documentary evidence which he considered, and to Dr E’s assessment of the mother’s affect in retelling her allegations in his interviews with her.
I am satisfied that, at least in the latter part of 2013, the father acted as the mother alleged and that his actions constituted family violence of quite an extreme nature, including threatening to kill her and to kill himself.
I am also satisfied that, before the mother stopped drinking, she perpetrated family violence upon the father.

PARENTAL RESPONSIBILITY

The presumption in favour of equal shared parental responsibility is rebutted by the findings that I have made in relation to family violence.
The text messages between the parents that I have read and considered would, alone, lead me to the conclusion that there is no possibility of civilised communication between these parents.
This, in itself, would not be a sufficient reason to deprive a child of the involvement of a parent in essential decision making, but it is clear from those texts that the father’s attitude in relation to the child’s being treated by any medical practitioner will be harmful in the event that the child requires medical treatment. The tenor of the conversation revealed in the text messages gives rise to grave concern that these parents will never be able to agree on any decision in relation to the child.
I also accept the evidence of Dr E that the mother ought not be subjected to communication with the father in the manner he uses.
For those reasons, the mother will have sole parental responsibility for the child.

SUPERVISION

I accept the evidence of Dr E that changeovers need to be supervised. This will assist the child by shielding her from the overt hostility between her parents and also impose a further level of assessment in that the supervisor will not allow the child to go with the father if he is obviously impaired.
The general oversight of the paternal grandfather will provide a further level of comfort as to the child’s well-being when she is with her father without unduly fettering or imposing upon their time together.

COSTS

On behalf of the mother, costs were sought in relation to the re-listing on 17 November 2017 which was occasioned only by the father’s failure to attend during the hearing.
The solicitor for the mother estimated that costs, if assessed on the Legal Aid scale, would exceed $500 but confined his claim to that amount.
The father’s submissions do not address this application.
There is no evidence about the father’s financial position.
The mother was in receipt of a grant of legal aid for the proceedings up to and including 7 November 2017.
The resumption of the hearing on 17 November 2017 was entirely caused by the father’s absence during the substantive hearing. Had he attended at the hearing, the Application in a Case would not have been necessary.
Had the father attended and cross-examined Dr E when Dr E appeared on 7 November 2017, his application to re-open the case would not have been necessary.
In any event, that application was unsuccessful.
It is appropriate that the father pay the mother’s costs of $500 occasioned by his Application in a Case.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 November 2017.

Associate:

Date: 29/11/2017

[2017] FamCA 964

29 November 2017

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Costs

Remedies

Procedural Fairness

Statutory Construction