Gibney and Gibney

[2016] FCCA 1791

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBNEY & GIBNEY [2016] FCCA 1791

Catchwords:
FAMILY LAW – Interim hearing – parenting arrangements for child aged six years – allegations of family violence and drug addiction – primary considerations – best interests.

Legislation:

Family Law Act 1975: ss.60CC, 61DA

Applicant: MR GIBNEY

Respondent: MS GIBNEY

File Number: ADC 1215 of 2016

Judgment of: Judge Brown

Hearing date: 5 May 2016

Date of Last Submission: 5 May 2016

Delivered at: Adelaide

Delivered on: 5 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Hume

Solicitors for the Applicant: Tessa Hume

Counsel for the Respondent: Ms Schirripa

Solicitors for the Respondent: Legal Services Commission of South Australia

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The child X born (omitted) 2009 with each of the parties as follows:

   With the mother

   (a)From the conclusion of school on 5 May 2016 until the commencement of school on 9 May 2016 NOTING handover today will be at 3:30pm at the (omitted) Police Station;

   (b)From the conclusion of school on 11 May 2016 until the commencement of school on 13 May 2016;

   (c)From the conclusion of school on 17 May 2016 until the commencement of school on 20 May 2016;

   (d)From the conclusion of school on 23 May 2016 until the commencement of school on 26 May 2016;

   (e)From the conclusion of school on 30 May 2016 until the commencement of school on 3 June 2016;

   (f)From the conclusion of school on 6 June 2016 until the commencement of school on 10 June 2016;

   (g)From the conclusion of school on 14 June 2016 until the commencement of school on 17 June 2016;

   (h)From the conclusion of school on 20 June 2016 until the commencement of school on 24 June 2016;

   (i)From the conclusion of school on 27 June 2016 until the commencement of school on 1 July 2016; and

   (j)From the conclusion of school on 4 July 2016 until the date of hearing.

   With the father

   (k)From the conclusion of school on 9 May 2016 until the commencement of school on 11 May 2016;

   (l)From the conclusion of school on 13 May 2016 until the commencement of school on 17 May 2016;

   (m)From the conclusion of school on 20 May 2016 until the commencement of school on 23 May 2016;

   (n)From the conclusion of school on 26 May 2016 until the commencement of school on 30 May 2016;

   (o)From the conclusion of school on 3 June 2016 until the commencement of school on 6 June 2016;

   (p)From the conclusion of school on 10 June 2016 until the commencement of school on 14 June 2016;

   (q)From the conclusion of school on 17 June 2016 until the commencement of school on 20 June 2016;

   (r)From the conclusion of school on 24 June 2016 until the commencement of school on 27 June 2016; and

   (s)From the conclusion of school on 1 July 2016 until the commencement of school on 4 July 2016.

2. All handovers other than order 1(a) be on the premises of the (omitted) Primary School.

3. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 7 July 2016 at 11:00am, to discuss the care, welfare and development of the child X born (omitted) 2009 in an endeavour to resolve any differences between the parties in relation thereto.  The parties are to telephone the Registry on (omitted) to confirm their attendance.

4. The mother participate in no more than three (3) random urine drug screen tests at the father’s direction within twenty-four (24) hours of being given notice for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008.

5. A copy of the orders made today be given to the Principal of the (omitted) Primary School.

6. The parties do all things necessary to ensure the child’s enrolment at the (omitted) Primary School and the child to attend school regularly.

7. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so or from discussing the proceedings in the presence or hearing of the child or from permitting any other person to do so.

8. The mother is restrained and an injunction issue restraining her from consuming illicit drugs whilst the child is in her care or twenty-four (24) hours prior to the child coming into her care.

9. The father is restrained and an injunction issue restraining him from consuming alcohol to excess whilst the child is in his care or twenty-four (24) hours prior to the child coming into his care.

10. Further consideration of the matter is adjourned to 8 July 2016 at 9:30am for directions.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1215 of 2016

MR GIBNEY

Applicant

And

MS GIBNEY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Given the controversy arising in the case, it is appropriate that they be transcribed.

2. This morning, I am dealing with an urgent application in which Mr Gibney is the applicant and Ms Gibney is the respondent.  The proceedings relate to the care of the parties’ child, X, who was born on (omitted) 2009.  Accordingly, at the present time, X is a few weeks short of his seventh birthday. 

3. The proceedings concern interim arrangements for X’s care.  What that means is that the orders I am making today are provisional in nature.  They are not final orders.  I am not deciding today what the long-term arrangements should be for X’s care. 

4. The reason for this is that, at this early stage of proceedings, I do not have enough evidence before me, at the present time, to make significant long-term decisions about X.  The case comes into court against a background of grave urgency and controversy.  There are few things about which the parties are agreed upon other than there is a great deal of crisis in their lives at the moment. 

5. As each of you will be aware I have not heard, I do not think, a single word from either of your mouths.  I have not seen either of you in the witness box perhaps being asked difficult questions which you may find difficult to answer truthfully about what you have done in the past.  I cannot resolve these various issues today in what necessarily must be a truncated or shortened hearing.  As such, I am not in position to determine who of you about is telling the truth or who is not telling the truth about all manner of things. 

6. The significant issues in this case are as follows.  Mr Gibney essentially asserts that he was driven to take extreme measures in respect of X’s care because – not to put too fine a point upon it – Ms Gibney was out of control in terms of her life because of her longstanding addiction to all manner of drugs, particularly amphetamines and cannabis. 

7. It is also Mr Gibney’s position that as a consequence of that, Ms Gibney was ignoring X’s needs and was not taking proper care of him.  It is also Mr Gibney’s position that Ms Gibney has unresolved psychological or psychiatric issues and she – again not to put too fine a point on it – has been seriously neglecting X. 

8. From the mother’s point of view, she says that the drug allegations are, essentially, made up by Mr Gibney to serve his own ends in an acrimonious dispute about X’s care.  Ms Gibney asserts that she has not taken serious drugs for at least nine years and when she did so, she took drugs with Mr Gibney and at his instigation. 

9. Accordingly it is Ms Gibney’s position that Mr Gibney is not without blemish so far as the use of drugs is concerned.  Ms Gibney also alleges that Mr Gibney has a prior conviction with respect of the cultivation of drugs.  Underpinning her case is an allegation that Mr Gibney is being disingenuous about the parties’ respective involvement with drugs.  Significantly, it is the mother’s case that the father is a violent and unpredictable person who is not an appropriate role model for a child of X’s age.

10. In this context, it is Ms Gibney’s case that during the parties’ relationship of many years, she was subjected to quite serious coercive and controlling behaviour from the father.  It is her case that in November of last year she was very seriously assaulted by Mr Gibney to such an extent that she had a number of her teeth loosened and had a very nasty black eye.  These injuries required medical assistance and as a consequence of them she made a report to the police which resulted in charges against Mr Gibney. 

11. However, it is the mother’s position that following remonstrations from Mr Gibney, she was prepared to let the police charges drop.  Thereafter, she resumed her relationship with Mr Gibney on the basis that Mr Gibney told her that he would change his behaviour. 

12. It is Ms Gibney’s case that this has not occurred and Mr Gibney remains a violent and unreformed person.  Significantly, it is Ms Gibney’s case that X is acting out aggressive behaviour and she, I think, suggests that that is because he has been exposed to his father’s violent behaviour in the home. 

13. Of very great significance in this case is that Ms Gibney concedes that X loves his dad and benefits from seeing his father. So, on the one hand, I have serious allegations of methylamphetamine use and on the other hand, I have very serious allegations of family violence. Due to the structure of the Family Law Act and for obvious reasons I have to take all of these allegations very seriously indeed.

14. For self-apparent obvious reasons, people who are under the influence of methylamphetamines are not good parents.  They are emotionally absent because of their drug use.  They are likely to be neglectful and not take proper care of a vulnerable child.  It is well-known that the people who take methylamphetamines do not look after themselves.  So they pose a very great risk to a child. 

15. On the other hand, people who are violent to another person, particularly to a person to whom they are close, are not good role models for children.  Exposure to violence is dangerous for children.  It is emotionally harmful is they see a much loved parent being harmed or frightened.  Exposure to such behaviour is likely to be frightening for children.  As such, I have to take significant notice of allegations of family violence. 

16. However, the fact of the matter is that allegations of both drug use and family violence are hard to establish definitively in a hearing such as this one.  People, for obvious reasons, do not advertise their use of drugs and family violence, more often than not, occurs behind closed doors and as a consequence it is often difficult to obtain independent evidence to corroborate that it has occurred.  However, in this case each party asserts that there is independent corroborative evidence to support their respective positions.

17. In is Mr Gibney’s case that there is circumstantial evidence of Ms Gibney’s drug use.  He says significant sums of money have gone missing from the family’s funds.  In this context, he asserts that the only explanation for this money going missing is that it has gone to the people who have sold drugs to the mother. 

18. Significantly, in this case, there is evidence that there was an unpleasant incident between the parties involving violence in November of last year.  There is a photograph of injuries sustained by Ms Gibney and reports were made to Ms Gibney’s medical practitioner about the incident by her.

19. It is also the case that for a lot of reasons, chiefly to do with the tragic loss of another child, Ms Gibney has not been psychiatrically or psychologically well for the last 12 months or so.  She concedes that, as a result, she has been prescribed quite significant antidepressant medication. 

20. It is part of Mr Gibney’s case that this medication has not reacted well with Ms Gibney and has caused her to be prone to falling asleep catatonically which prevents her from caring for X.  Whether that is as a result of depression or of the aftermath of amphetamine use is unclear to me.  In any event, Ms Gibney asserts that Mr Gibney is overstating the level of her difficulties in this regard.

21. What is clear is that something happened between the parties in March of this year.  The brewing crisis between them, if you like, came to a head at this stage.  The mother says she went to see a friend after some form of dispute with Mr Gibney and returned to find the doors of the parties’ family home in (omitted) locked.  She has not seen X since. 

22. From the father’s point of view, he was forced to take this drastic action because the mother’s drug use had not reduced and he felt compelled to isolate X from her.  The father’s case is supported by his own mother who has filed an affidavit.  This lady seems to have many longstanding criticisms of Ms Gibney’s abilities as a parent. 

23. I am at pains to point out again to the parties that I cannot resolve these factual issues.  What I must do is as best I can, look at the evidence before me, see what is agreed, what is not agreed and then put into place what I believe is the best outcome at this stage for X.

24. In doing that, I have to consider a long list of matters in the Family Law Act. If you are interested, you can look them up for yourselves. They are contained in section 60CC of the Family Law Act. 

25. The considerations are divided into two categories.  Firstly, there is what are called major or primary considerations and a longer list of what are called additional considerations.  Normally the primary considerations are to be given greater emphasis.  There are two major considerations and I will tell you what they are. 

26. Firstly, I have to consider the need to protect a child from sustaining both physical and psychological injury from being exposed to family violence, neglect or abuse.  Secondly, I have to consider the benefits – that is the word the legislation uses – of a child having a meaningful level of relationship with not one but both of his or her parents.  So two things are considered fundamental: - meaningful parental relationships and protection, protecting children from coming to harm. 

27. Harm can take all sorts of forms as you can appreciate.  But, in the context of children’s matters under the Family Law Act, it encompasses both physical and psychological harm to children.  The law was changed not so very long ago.  I am now directed to give more weight to protective concerns relating to children.  What that means is that protective concerns are to weigh more heavily with the court than the obvious desirability of a child maintaining meaningful relations with a parent.

28. So given the way each party has presented their respective cases, at this early stage, this is a case relating to the risk of X coming to harm, either as a consequence of being exposed to a violent parent in the form of his father or a drug affected parent in the form of his mother.

29. It is difficult to assess risk but that is what I really have to do, assess risk, but in the context of an interim hearing where the evidence available to me is incomplete and quite possibly has been hastily collated against a background of considerable urgency and upset. 

30. Everyone involved in the case, as I remarked earlier I think to Ms Schirripa, is for obvious reasons very worked up at the moment.  And as I have said, I am not going to be able to sort everything out today.  Really, part of today’s exercise is to put in place holding orders that protect the child and significantly put in place a process whereby I can get more information about him and his relationship with each of his parents. 

31. In this context, I have to make some sort of assessment as to the risk that each party poses to the child and put in place orders that are commensurate with the degree of risk as I assess it.  The risk relates to X being parented by a person who is allegedly violent and controlling, on the one hand or by a person, on the other hand, who is out of control because of drugs. 

32. It seems clear that Ms Gibney and, indeed, X, have a positive professional relationship with a family doctor called Dr B.  Dr B arranged, at the behest, I suspect, of Ms Schirripa or certainly with her consent for Ms Gibney to have a drug screen test.  The drug screen test was supervised and it is negative for drugs.  Given this result, Ms Schirripa, on behalf of her client submits that the drugs issue has been put to bed.

33. I was not born yesterday.  I practice my profession as a judge every day in this court.  And every day I think, without fail, I get a case involving methylamphetamines.  I watch the television.  I read the newspaper.  Tony Abbott, the former Prime Minister, said there is an epidemic of methylamphetamine use in this country.  I would be naïve if I did not think methylamphetamines was not a very significant force in the community.  I do not think it is a force for good, though others may say it is just another drug.  I do not regard it as such.

34. Anyway, I must take the allegation seriously.  People who regularly use drugs usually know about how long they remain in their system.  They are alive to how quickly you excrete them or break them down.  They know to what to say to doctors.  They know what to say to people like me.  I would be naïve not to think that people who do take drugs are manipulative and sneaky and cunning and all the rest of it.  In this case, the drug screen test, of course, took place at a time of Ms Gibney’s choosing and the person who analysed her sample has indicated that the sample provided was very dilute.

35. People, I think, know if you drink a lot – there is no polite way to put this - you pee out quite a bit of water.  It dilutes the substance – the test.  So I have to be suspicious of people of people who have been around drugs.  I have to take these things seriously and not be easily reassured by a single drug screen test which was taken when Ms Gibney chose to do it and which is noticeably diluted. 

36. Similarly, I have a very nasty photograph which has a very nasty injury on it.  Mr Gibney denies inflicting the injury.  The circumstances of the injuries are highly disputed and Mr Gibney asserts that Ms Gibney’s teeth are loose because – as is well known, again, people who abuse all manner of drugs are neglectful of their dental health and grind their teeth and so on and so forth.

37. Again, there is much to be concerned about.  It is a question about assessing the risk.  But there are also risks of stopping a child having a meaningful level of relationship with somebody whom he or she loves very much indeed. 

38. It is harmful, I think, for a child to go from a situation where he sees mum or dad every day of the week to not seeing mum or dad every day of the week and regrettably in cases like this where this a vacuum as to who will parent a child because of allegations to a certain extent a child is metaphorically held hostage until somebody such as I can put in place orders which keep the peace.

39. In this case, it seems to me that it is likely to be the case that X has a meaningful level of relationship with both his parents and is likely to be perplexed that he has not seen his mother for some time.  Does the mother because of the allegations of amphetamine use, represent a risk that is so extreme that it would be unacceptable for me to take it; that is, to take the risk of X spending time with his mother.  If there is a risk what is a proportionate response to that risk.

1. Ms Gibney categorically denies that she has taken drugs recently.  In this case, apart from Mr Gibney’s assertion of the fact and perhaps a fairly contradictory SMS message, there is no definitive evidence that – or objective evidence corroborative of Mr Gibney’s assertion. 

2. On the other hand, Ms Gibney is in touch with a doctor.  She has provided a clean drug screen test.  In my view, the risks of X not having time with his mother are greater than the risk of him being exposed to his mother’s alleged drug use.

3. In my view there are responses which can be put in place including an injunction in respect of drug use and random supervised drug screen testing in the meantime which are proportionate to that risk. 

4. As I say, I have to take issues of family violence seriously and the evidence before me is indicative that X is not travelling well, indeed, and I have been given some drawings that he did at school and a story which he recounted to his teacher.  And I am aware that there is much controversy about how much weight can be put on to children’s drawings particularly children of X’s age.

5. But certainly, Dr B was concerned about X’s presentation to him and there is concern that he has been suspended from school at his young age.  Why he is behaving in the way he has been is unclear to me.  But I am concerned about that, so I do not dismiss the mother’s allegations of family violence. 

6. In fact, at this stage, I think I am entitled to make a finding on the basis of a reasonable belief at this stage that family violence has occurred. For that reason, the presumption of equal shared parental responsibility is rebutted in this case pursuant to section 61DA and I do not have to consider the child spending equal or substantial periods of time with his parents.

7. However, in this case, given the mother’s concession of a significant level of relationship between X and his father and the fact that Ms Gibney says Mr Gibney would never expose the child to direct violence or force, I think there are also risks if X does not interact regularly with his father. 

8. The next stage is for the parties to meet with one another with one of the Court counsellors who will report back to me his or her impressions of each of the parties and provide advice as to how the matter should be managed. 

9. It is an unusual thing to appoint an independent children’s lawyer at the first return date of a matter particularly in the case of a young child who is likely to find it difficult to express any clear reference as to living arrangements.  I think it is, at this stage, too early for such an appointment and I will await the advice of the family consultant.  The earliest appointment I can give the parties is 7 July at 11 o’clock.  And I am going to bring the matter back on 8 July, 9.30 after the parties have seen the Court consultant because I need to manage this matter carefully, I think.

10. During that period of time, which is about two months, I have come to the view that X should be able to interact with each of his parents relatively regularly.  Ms Gibney does not want to disclose where she is living at the moment and I am not going to compel her to do so.  She is living in accommodation that she has obtained through a domestic violence service.  In general terms, it is in the (omitted) suburbs of Adelaide.

11. X has been going to the (omitted) Primary School and it seems to me that the best place for X to be exchanged between his parents is at the (omitted) Primary School.  And I am in a moment going to make a direction that the orders that I make today be provided forthwith to the principal of the (omitted) Primary School, so he or she knows what are the arrangements for X’s care and also can keep an eye out for him.  If the child is exchanged at school the parties themselves will not have to come into direct contact with one another.

12. As everyone knows, the school holiday is finished so – and there will not be another school holiday until the middle of July so the child can be exchanged at school.  It took me some time to formulate the orders.  That was – and the parties will be aware of that – that was because I was looking at the calendar trying to break up the time over the next two months.  Mr Gibney works as a (occupation omitted).  He works somewhat irregular hours.  He relies on his mother to assist with X.  I have, on a somewhat ad hoc basis, divided up the period so each party has blocks of days with X.

13. If I have made a mistake in calculating the days, I apologise.  I have done the best I can and I reserve the right to correct any mistakes I have made.  I will make an order that the parties each be restrained from denigrating the other in the presence or hearing of the child and from discussing these proceedings. 

14. I will also make an injunction restraining the mother from using any illicit drug.  I am well-aware that that is just some words on a bit of paper and if people are hell-bent on using drugs they will do it regardless of any injunction.

15. But during the period of the adjournment, which is going to be until 8 July, I will direct that the father is at liberty to order that the mother to have three random drug screens at her own expense.  That is a significant sum of money.  I realise they are $140 a go.  But as I have said already, I have to take these allegations seriously.

16. So for those reasons, I am going to – I should also say that Ms Gibney is not working at the present time.  She has been on leave without pay for 12 months.  She ordinarily, I think, works at the (employer omitted) but she has been unwell and that is another matter that is of significance to me because at this stage I have little information about Ms Gibney’s long-term psychiatric and psychological health.

17. So all these various factors have resulted in me coming to the conclusion to a certain extent that I should share the risk between the parties.  That is not an expression I particularly like – sharing the risk – but putting in place some orders whereby the child can move regularly between his parents until such time as there is more information to hand. 

18. So, for these reasons, until further or other order, I will make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         15 July 2016