GIBSON & BUTLER
[2020] FCCA 2770
•4 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIBSON & BUTLER | [2020] FCCA 2770 |
| Catchwords: FAMILY LAW – Parenting – young children – recent consent interim orders – father had provided clear drug tests prior to consent orders – mother entered orders based on clear tests – mother subpoenaed testing company – reports of the tests of the same dates as the clear test reports showed positive results – father admitted having had copies of documents showing positive tests and not providing them as it would impact his capacity to have time with children – no finding on interim basis as to how documents showing clear results came into being –consent orders entered on a false premise open to court to reconsider orders – father told ambulance officers he had been using ice for a month – father advised court he was only using it for a day – inadequately treated mental health – unacceptable risk from combination of drug use and mental health issues – supervised time only – consequential orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 64B, 65AA, 65D, 69ZL, Part 7 |
| Cases cited: Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 |
| Applicant: | MS GIBSON |
| Respondent: | MR BUTLER |
| File Number: | CAC 48 of 2019 |
| Judgment of: | Judge B Smith |
| Hearing date: | 4 September 2020 |
| Date of Last Submission: | 4 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2020 |
REPRESENTATION
| The Applicant appeared for herself |
| The Respondent appeared for himself | ||
| Solicitors for the Independent Children's Lawyer: | Mark Macdiarmid Family Law Specialist | |
ORDERS
The matter be listed for mention on 13 April 2021 at 9:30AM.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
The parenting orders made by consent on 2 March 2020 are discharged.
The mother have sole parental responsibility of X born in 2013 and Y born in 2016 (‘the children’) with regards to the children’s education and with regards to any urgent medical issues that arise, but she is to take reasonable steps to keep the father informed in respect of her decisions.
The children shall live with the mother.
The father be permitted to FaceTime the children every Tuesday between 5.45pm and 6.15pm.
Pending the commencement of time at the Contact Centre provided for in Orders 8 and following below, the father shall spend time with the children as agreed in writing between the parents and failing agreement each alternate weekend for up to 4 hours, supervised by such supervision service as is nominated pursuant to the next Order (‘the supervision service’) at such times and venues as are agreed between the parents and the supervision service, and failing agreement as are determined by the supervision service, and to facilitate the time provided for in this Order each parent shall forthwith do all things necessary to engage with the supervision service including completing any necessary intake process in a timely fashion.
The supervision service will be a service agreed between the father and the Independent Children’s Lawyer, selected from the following services:
(a)B Contact Centre;
(b)C Contact Centre;
(c)C Contact Centre;
(d)D Family Services;
(e)E Contact Centre; and
(f)F Contact Centre.
The father will obtain a report from the supervision service for each occasion he spends time with the child pursuant to the previous Order and will make a copy of such report available to the solicitors for the mother and the Independent Children’s Lawyer within 7 days of receipt by the father.
The father will be responsible for all fees and charges of the supervision service with respect to the children’s time with him.
The father and mother must forthwith:
(a)Contact Sydney Contact Service at Suburb G (conducted by H Family Services) on ... to arrange any necessary appointments for assessment for suitability for supervision of the time the child spend with the father (‘the assessment’);
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable policies and rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the father is thereafter to spend time with the children at a frequency of not more than once per fortnight for a period of 4 hours.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in the previous Order, then contact shall occur at the times that are offered by the Contact Centre.
The mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
The parents shall be equally responsible for any fee charged by the Contact Centre.
A copy of these orders may be provided to the children’s school or day care centres.
Within 5 days and thereafter upon request by the Independent Children’s Lawyer at any time, but on no more than one occasion every 3 months either party shall submit themselves for hair testing and provide such hair samples as directed by The Drug Detection Agency for the purposes of obtaining a drug screen using the Drug Detection Agency’s standard 5-Panel Hair Drug Test (testing for Amphetamines / Methamphetamine, Cannabis, Opiates, Cocaine, & PCP).
The party be restrained from taking any steps to interfere with the provision of hair samples or to interfere with the test results.
The party direct and authorise The Drug Detection Agency to provide directly to the Independent Children’s Lawyer and the other party copies of all test results forthwith upon those results becoming available.
The party shall meet his/her own costs of such hair testing.
Upon request by the Independent Children’s Lawyer at any time, but on no more than two occasions per calendar month not falling on a Friday, a weekend day or any day of a long weekend, the party shall within 24 hours of such request being made:
(a)do all things, sign all documents and pay all fees necessary to submit themselves to an accredited laboratory for urinalysis testing (under supervision and chain of custody), such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine; and
(b)upon the results of such tests being available, cause copies of the results to be provided to the Independent Children’s Lawyer and the other parent.
Without admissions, each parent is restrained from:
(a)Consuming any prescription medication other than as prescribed;
(b)Physically disciplining the children;
(c)Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(d)Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
(e)Permitting the children having access to any of the documents filed in these proceedings;
(f)Communicating any information intended for the other parent through the children;
(g)Causing the children to be a medium in any way between the mother and the father or between the mother and the father and any other person; and
(h)Discussing major long-term matters with the children including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parents to those matters being discussed with the children or the parties agree to the matter being raised and discussed with the children.
The parents and the Independent Children’s Lawyer shall participate in a Legal Aid mediation under the COMP program (‘the mediation’) at a time and date appointed by Legal Aid NSW. The Independent Children’s Lawyer has sought funding for the mediation to take place.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)to consider the factors in sections 60CC and 65DAA of the Family Law Act 1975;
(b)to consider issues raised in the Family Consultant’s Memorandum to Court;
(c)to profile of the parents (and other significant adults);
(d)to assess the parents interactions (and those of other significant adults);
(e)to assess the children’s developmental and emotional state;
(f)to assess the relationship of the children to the parents (and other significant persons);
(g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(h)to assess the proposed and actual home environments; and
(i)to assess the proposals of each party as to the children’s future.
The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.
The report be released as soon as practicable, or unless otherwise arranged with Chambers.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Children to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.
Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers to have the matter relisted if they see reason.
NOTES:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Gibson & Butler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CAC 48 of 2019
| MS GIBSON |
Applicant
And
| MR BUTLER |
Respondent
REASONS FOR JUDGMENT
These are short-form oral reasons for decision pursuant to section 69ZL of the Family Law Act1975 (Cth) (“the Act”), in an interim application for parenting orders within Part VII of the Act, which was listed before me today and which I have heard this afternoon.
The short background to the matter is the applicant mother is 42 and the respondent father is 43.
The parties commenced cohabitation in approximately 2007 and married in 2012. They had the children of the marriage, X, born in 2015, almost five, and Y, born in 2016, almost four, and they separated in about November 2016.
The full history of the matter need not be considered at the moment, but on 22 March 2020, the parties entered into consent orders which the Court made in respect of parenting.
At that time, the consent agreement was that the parents would have equal shared parental responsibility, and the children would spend time with the father in school term times, in week one, after-school care, or 4pm, on a Friday until the commencement of school on a Monday, and in term 2 in week 1 on the same basis, and then in week 2 to the conclusion of after-school care on Wednesday at 4pm until the commencement of school on Thursday.
There are also arrangements as to school holidays and communication.
There was also a requirement for drug testing starting at paragraph 23 and going to paragraph 28 of those orders, noting that the parties were able to require of each other blood testing because of the mutual allegations of a history of illicit drug use.
There were also a range of other orders made around the procedural matters of communication and such.
The matter comes before me today pursuant to the mother’s application, in effect, to discharge those orders and to move to an arrangement where she has sole parental responsibility and where the children continue to live with her and have only supervised time with the father.
An Independent Children's Lawyer (“ICL”) having been appointed, those are orders that the ICL supports and, indeed, the orders that the mother proposes are those that have been drafted by the ICL.
It is not common for a Court to make such a significant change of orders in a period of only six months. However, the mother says that there are matters of grave concern which have arisen which require the Court to revisit the issue.
I note that the father, who is not represented, did not formally raise the question of Rice & Asplund, but that would not necessarily apply in an interim case, and to the extent to which the principles that the Court will not quickly revisit interim orders is applicable, I consider the evidence that I heard today, including facts conceded by the father, make it clear that this is a case where the Court should entertain, at least, making further or different orders.
I start with the issues in order. The first issue is the father’s drug use. The father produced, pursuant to the orders, test results in respect of a drug analysis. The test results are set out in respect of a test undertaken on 25 October 2019 at page 27 of the mother’s Court book, and in respect of a test undertaken on 4 March 2020 at page 40 of the Court book.
The mother says that the consent orders she entered into, and I accept this, were entered into on the basis of the representations contained in those documents as provided by the father that he had undertaken testing and that the testing was negative. That is certainly what the two documents I have just referred to show.
The mother has subpoenaed the drug testing facility and it is clear that the tests were, in fact, positive. The father, who is not represented, agreed to as much.
The documents in a bundle of material produced on subpoena by the Australia Workplace Drug Testing Service (“AWDTS“) include a test in October 2019, which is clearly the same test. It was undertaken in respect of Mr Butler and it is recorded to have been taken at the same date and exactly the same minute. It has the same ID and LIN numbers and location ID, and to the extent to which there are four different identifying numbers on the document; they are all the same.
Contrary to the negative test results that were produced by the father to the mother at that time, the document marked A1 reports positive results for Cocaine, Benzoylecgonine, Norcocaine, also for Methamphetamines, MDMA, for Amphetamine as well as for Cannabinoids (THC).
Similarly, the document marked A3, which in the same way corresponds to the other test undertaken by the father makes it clear that he also had in March of 2020, contrary to the document he has provided to the mother and, I think, by that time the ICL, again, positive tests for Cocaine, Benzoylecgonine, and Amphetamine.
The mother said that she is concerned that I would draw an inference that he had doctored the material sent to her. I did not inquire of the father whether that was the case, since he is unrepresented and if he did doctor evidence in the context of the Court proceedings, there would be significant consequences. Nevertheless, he did agree that he had received those documents which showed positive test results. He accepted that those positive test results would have been accurate, but he says he wasn’t using, in effect, a lot of drugs.
He also argued that he didn’t actually, under the Orders, have to provide all of the results, including copies of the results that show that he was using drugs. I do not accept for a moment that he believed that.
The use of drugs alone is a concern, and the fact that he has not been candid or complied properly with the Orders is a concern, but that alone might not be sufficient to lead to the no unsupervised time Order that has been proposed. As it was put to me, there is a whole series of events.
The father has a history of drug use. I read onto the record the ambulance record from 19 August 2019. The ambulance recorded that it was a question of “mental health, behavioural” and the description as follows:
call from a hotel, regarding a patient who was unrousable in ther hotel room. O/A pt was sitting on the couch, responding to painful stimulus. Pts friend was on scene. pt admits to taking ice over the weekend. while pt was unconcious GCS12…
I will just note that that refers to the GCS is the Glasgow Coma Scale, and 12 is somewhat less than the 15 maximum for consciousness. I will go back to the quote:
…initally however responded to painful stimulus. pts obs were normal and there was no airway obstruction at any stage. pt has no vomited and airway was clear while reduced concious level. obs remained the same, states no other drugs use just ice. been using ice for a month. mental health has deteriated, no current mental health plan in place. didnt mention he wanted to harm himself although was very upset. no medical conditions. pt was rousable to pain throughout. pt states he is very tired.
Now, that contemporaneous history of the father admitting to drug use and to having, at that stage, been using ice for a month, was denied to me by the father. He says that he did not tell them that he had been using ice for a month, but that he had just used it the night before. I prefer the contemporaneous record of the ambulance officers as to what they were told, noting the history of drug use in these proceedings.
The father referred to the question of his mental health, and I was also provided with subpoenas A7 from the subpoena material from Dr J which includes some material from the clinical psychologist, Dr K, who the father has very wisely been seeing in respect of his mental health conditions and, indeed, the father agreed that his mental health is not good and he has a history of mental health concerns.
As I said to him during the course of submissions, none of this was being said or led to embarrass or humiliate him, but these are significant questions in terms of the safety of the children in his care.
Dr K noted in January of this year that Mr Butler was unreliable around keeping appointments, and so she had not had further appointments at this stage. She reported in March 2020 that he had presented:
…with panic, anxiety, speech difficulties, stress and depression in response to his separation and consequent custody difficulties, and more recent legal difficulties, within the context of occasional drug use.
Now, those legal difficulties, I will note, appear in that context to relate to the involvement of the father with police when allegations were made in September 2019 that he was behaving in an offensive manner in or near a public place and was obscenely exposed. Also, another matter where a neighbour complained that he was potentially masturbating in public view in a Courtyard.
I note there were no convictions recorded, so I make no finding about that, but in the report of Dr K on 5 July 2020, the father did ask her to provide a report for the purposes of a “section 32 Application” in respect of his potential custody hearing. I take that as a concession by the father that he was concerned about his mental health, and I am satisfied that there is sufficient evidence that his mental health condition which, as we discussed during the case, is something that necessarily he is not at fault for, but which he must seek to manage as best he can.
There does seem to be no doubt that his mental health condition is affecting him.
I also note the evidence of the father’s sister, who he says is “a child” despite the fact she is 46, who I note has also given evidence, some of it hearsay which I do not place any weight on, but some evidence of her own direct observation in respect of his drug use and other matters of concern. I give some weight to the fact that his sister is willing to go on Affidavit. I say, having read it, perhaps, I do not think the sister obtained any joy from this, but has gone on Affidavit to support the fact that a combination of drug use and mental health concerns may make the father a person who is of concern in terms of unsupervised time with the children.
The father’s submission to me is that, in effect, he agreed that he has got mental health concerns, but he said these mental health concerns are a consequence of the mother’s conduct in trying to limit his time with the children. It is a very difficult situation.
I accept that the father genuinely perceives what’s occurring as people trying to use things against him, but I am satisfied that the mother has acted very reasonably in that when she believed she had seen clear drug tests, and that the father was seeking mental health treatment, she consented to unsupervised time, and that she has only now come to the Court when it has become apparent that the father mislead her by providing information about the drug tests which, at the very least, was not full and accurate, and where he agreed that he did not give her the true information because he knew that if she and the ICL had the true information about his drug use, it would or might impact on his seeing the children.
Unfortunately, it appears that the combination of mental health concerns and drug use, together with the consequences in terms of his ability to spend time with the children, are having a very deleterious effect on the father, and there is a risk that this will lead to a downward spiral. One hopes that doesn’t happen, and that he continues to seek mental health treatment. But those are the short facts of the matter.
In considering the parenting orders as defined in part VII, Division 5, and I note section 64B and the Court’s powers to make such orders under section 65D, the Court’s obligation is to always consider the paramount consideration, being the best interests of the children. I note section 60CA and section 65AA.
Whilst Mr Butler genuinely see this as harsh and unfair, my obligation is not to think about him and his mental health. He complained that no one seemed to be focussed on the need to protect his mental health, and the effects that being separated from his children might have on him, but while I am aware of that, my obligation, and the paramount obligation I have is to consider the best interests of the children.
The primary considerations I must consider when determining the best interests of these children are as set out in section 60CC of the Act. First and foremost, there is an obligation to protect the children from physical or psychological harm from being subjected or expose to abuse, neglect or family violence. I note there are allegations of family violence, but I will not go into those. And, of course, secondly, the benefit to the children of a meaningful relationship with both parents.
I note that, unfortunately, with one of the police incidents, the children were present, and although the police notes I have looked at indicate that the police tried to deal with the father away from the children, there is no doubt that there has been an impact.
There is also no doubt that when the father is using drugs or is having a mental health episode, his capacity to care for the children is significantly reduced.
I note that this is an interim hearing, and as the Full Court said in Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 in 2006:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
Now, the father, in effect, wants the existing orders and perhaps more time and the ICL and the mother propose a move to supervised time only.
I note that, as was said in Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101 in 2010 by the Full Court that the interim hearing and the orders that I will make today:
…are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing...
On that basis, a conservative approach has been adopted, and any factual findings to be made at an interim hearing should be “couched with great circumspection”.
But it was also said in Eaby & Speelman (2015) FLC 93-654 in 2015:
…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
Now, in this context, I am satisfied that the father continues to use drugs and had positive drug tests and provided documents from a testing facility in a way in which, I cannot determine how it occurred, but which appeared to indicate the tests were negative when, in fact, he had copies of documents which indicated the tests were positive, and he did this intentionally.
I am also satisfied that, although I cannot make a full finding or do anything about the events involving police, noting the event that occurred with the ambulance officers, where I accept the ambulance summary, it is clear to me that the father has a drug problem that he does not admit, and that, as a consequence of drugs and/or his mental health concerns, there have been a number of events where he has had difficulty remaining in control.
I am required to undertake a risk assessment, and the risk assessment principles are as set out in Deiter & Deiter [2011] FamCAFC 82 by the Full Court in 2011, where the Full Court said:
[61] The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements -- the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the court.
And, in a similar vein, in SS v AH [2010] FamCAFC 13 in 2010, the Full Court said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
And, again, I note that the father has put in issue the nature and extent of his drug use and the nature and extent of his mental health concerns and their impact upon his ability to control himself, but I consider that there is a real risk that the father is using ice again. It is likely he was using ice for a month.
I think the fact that he has misled the other party and, in effect, the Court by providing material that was not accurate as to his drug testing, means that there is a risk that he is still using drugs at an unknown level, and that that, in combination with his mental health concerns, means that there may be times when he is not able to control his behaviour, which is of particular concern when dealing with young children.
I note the test of unacceptable risk in M v M (1988) 166 CLR 69 at 78, and is also discussed in B & B [1993] FamCA 143; (1993) FLC 92-357 by the Full Court, which is summarised Stott & Holgar and Anor [2017] FamCAFC 152 by the Full Family Court, when that Court, looking at a extrajudicial statement of former Justice Fogarty where he said (emphasis in original):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
In terms of the concepts of benefit to the child, Justice Hannam in Agnew & Wogan and Anor summarised what was said by Justice Brown in Mazorski & Albright, and also by the Full Court in McCall & Clark, and looked at the fact that it was said in McCall & Clark that:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
When I apply these principles to the facts of this case, I consider there is a significant risk that the father continues to use ice, and that it impairs his capacity to care for the children in his care. I also consider there is a considerable risk that the father’s mental health, of itself, has not apparently been treated on an ongoing basis because of his failure to engage in the long term. It is also possible that because of ice in addition there are many times when he cannot control himself.
I think the risk to a four year old in particular in the care of a person who is using ice with mental health concerns does not need to be further articulated. They have no self-protective capacity, and if he fails to care for them, the consequences for their health and, indeed, their lives may be devastating.
I do not suggest that he would intentionally harm the children, but when a person is high on ice and is in the middle of a mental health event, they have no control and it is easy for young children to suffer terrible consequences.
In these circumstances, I am comfortably satisfied that the father now poses, and he probably did pose at the time of the consent orders, an unacceptable risk. In those circumstances, it is appropriate and necessary in the best interests of the children to revisit those orders. On that basis, I will discharge those prior orders and start over.
The mother’s position, supported by the ICL, is that there is a benefit to the children in having a meaningful relationship with the father, so long as it can be done in a manner which is safe. They propose supervised time, I think that is an appropriate safeguard, which will allow the children to have the benefit of time with the father. Unfortunately, there is not a lot of money in this case. That’s just the financial position of the families, so private supervision is not appropriate.
It wasn’t suggested to me there should be any independent supervisors. I note what was said in B & B (1993) FLC92-357 about family or friends, in any event. Even if that was a possibility, there is no one person both parties would agree on, noting that the father indicated many times that he fears his family have turned against him in supporting the mother.
In those circumstances, I think all that can be done is to have the family wait for a contact centre, and as is proposed by the ICL, and have FaceTime.
In those circumstances, I propose to make orders in accordance with the minute of order proposed by the ICL and supported by the mother. They are, in effect, to discharge the prior orders; have the children live with the mother; have FaceTime every Tuesday between 5.45pm and 6.15pm; have the parties apply to a contact centre, and when they are able to, have four hours every alternate weekend, and any such additional time as can be agreed.
I note the father is working, and he will pay those costs. I will make the ongoing hair drug test and urinalysis orders, subject to this: I note that the mother also had had a history of drug use. She has produced clean results to date, and that is very pleasing, but I think it is appropriate to make the orders 13 to 17 so that the ICL, who is the person to make the decision, may require either the mother or the father to undertake these tests. If the ICL remains satisfied it is not in issue with the mother than he will not need to, but that power should be there. I will make the restraints.
I note the policy about requiring parties to show they’re not in a position to pay for a Family Report, in circumstances where we have cases where people with millions of dollars in net assets are getting free Family Reports at the public cost, and therefore taking up those resources from those who need them, but I am comfortably satisfied that’s not such a case.
The mother raised the question of parental responsibility. I am satisfied that there are issues around communication and there is no real communication. The father’s antipathy to the mother at the moment is enormous, whether it is justified or not I cannot say, and it is not an appropriate matter for me to consider. I think there is sufficient evidence to rebut the presumption in terms of the broad definition of family violence; even if there is not, I am comfortably satisfied at the moment there is no prospect of these parties sharing equal shared parental responsibility.
I do not think it is necessary or appropriate that there would be a general Order, but I do think that the mother should have an Order on terms. She is to take reasonable steps to keep the father informed in respect of her decisions.
I will enter Orders in accordance with these reasons.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Associate:
Date: 8 October 2020
Key Legal Topics
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Family Law
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Evidence
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Civil Procedure
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Consent
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