Giffin & Merrion
[2022] FedCFamC1F 684
•9 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Giffin & Merrion [2022] FedCFamC1F 684
File number(s): MLC 10024 of 2014 Judgment of: MCCLELLAND DCJ Date of judgment: 9 September 2022 Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Where the parties previously entered into consent orders in 2017 for equal shared parental responsibility and a week about time arrangement – Where the father unilaterally ceased time for the children with the mother in 2020 due to concerns of substance abuse and criminal activity – Where the mother was incarcerated from December 2020 to June 2021 – Whether the children should spend unsupervised time with the mother – Orders made for the father to have sole parental responsibility and for the children to spend supervised time with the mother until she addresses her substance abuse issues. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 67Z
United Nations Convention on the Rights of the Child
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
B and B (1993) FLC 92-357; [1993] FamCA 143
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
G & C [2006] FamCA 994
Isles & Nelissen [2022] FedCFamC1A 97
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Russell & Close [1993] FamCA 62
Sigley v Evor (2011) 44 Fam LR 439
Stott & Holgar & Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 100 Date of hearing: 1-2 August 2022 Place: Sydney (via videolink) Counsel for the Applicant: Ms Elleray Solicitor for the Applicant: Nevett Ford Solicitor for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Treyvaud Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers ORDERS
MLC 10024 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GIFFIN
Applicant
AND: MS MERRION
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
9 september 2022
THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.MR GIFFIN (“the father”) have sole parental responsibility for X born in 2007 and Y born in 2011 ("the children").
3.The children live with the father.
4.The children spend time with MS MERRION (“the mother”):
(a)As agreed between the mother and the father in writing; or
(b)Failing agreement, each alternate Saturday from 10.00 am until 2.00 pm with such time being supervised by the father or his nominee at a location nominated by the supervisor.
5.The children be at liberty to contact the party with whom they are not then residing upon any such request by the children and at all reasonable times.
6.Any time spent by the children with the mother is conditional upon the father or his nominee supervising such periods of time at a location that the supervisor nominates.
7.Both the father and mother are restrained from consuming any form of illicit substance and/or prescription medicine that has not been prescribed to them by a qualified medical practitioner.
8.The father be and is hereby authorised on behalf of both parents to apply for and sign any forms required to apply for or renew the children's Australian Passports, AND IT IS REQUESTED that the Australian Passport Office and the Department of Foreign Affairs and Trade accept this Order as authority to issue Passports for the children on the father's sole application.
9.The father shall be permitted to take the children outside of Australia provided that he:
(a)within 14 days of his departure date, provides the mother with a travel itinerary including the departure and return dates, the destination/s, the approximate dates on which the children will arrive and depart each destination and a telephone number and address at which the children can be contacted;
(b)during such travel, makes the children available for communication with the mother at all reasonable times; and
(c)provides the mother with appropriate make-up time (if necessary).
10.The parents immediately inform the other of any illness and/or injury sustained by the children (or either of them) whilst in their respective care and provide particulars of any treatment received by them, together with the name and address of the treatment provider and/or location at which they are being treated.
11.The parents each make available to the other all medication prescribed to the children to administer during their respective time periods.
12.The parents each authorise and direct all schools, educational facilities and extracurricular providers of the children to provide each party (at their request and cost) all information reasonably provided regarding their attendance, including but not limited to notices, information, newsletters, reports and/or photographs.
13.The mother only attend such school events, sporting events, training and extra-curricular activities that fall during time she is ordinarily spending with the children.
14.The parents keep each other informed as to their residential address and, with no less than 7 days’ written notice, provide the other of any change to same and/or their telephone number.
15.The parties, their servants and/or agents be and are hereby restrained from abusing, insulting or otherwise denigrating the other party, their family, partner and/or partner’s family in the presence of the children or in circumstances where that attitude could come to their attention.
16.The parents are at liberty to provide a copy of these Sealed Orders to any school or educational institution, allied health practitioners or treating doctors for a child or children subject to these Orders.
17.The Independent Children's Lawyer's appointment be discharged.
18.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create, 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 are included in these orders.
AND IT IS NOTED
A.The parties acknowledge that the child X is now 14 years of age and may choose not to spend time with his mother in accordance with these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Giffin & Merrion has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns the children, X born in 2007 and Y born in 2011 (“the children”). Their parents, the applicant, Mr Giffin (“the father”) and the respondent, Ms Merrion (“the mother”) are in dispute about the children’s future parenting arrangements.
Background
The father was born in 1980.
The mother was born in 1983.
The parties commenced their relationship in 2005 and married in late 2008. The parties separated on 31 August 2013 and divorced in 2016.
As noted above, X was born in 2007 and Y was born in 2011.
In the period immediately subsequent to the parties’ separation in 2013, the children lived with the mother but spent substantive time with the father.
In late 2014, the children commenced living with the father. This occurred in circumstances where the children had expressed concerns about events that had occurred at the mother’s home.
On 7 November 2014, the mother initiated proceedings in the Federal Circuit Court of Australia (as it was then known). On 9 May 2017, final orders were made by consent. Those orders provided for the children to live with the parents on a week about basis.
In February 2020, the father suspended the time that the children spend with the mother. He stated this was because of his concern for their safety including his concern that the mother was engaging in drug use and that she had mental health concerns. The father was also concerned that the mother appeared to have no fixed address.
On 28 February 2020, the father initiated proceedings seeking inter alia sole parental responsibility and orders for the children to live with him. In his supporting affidavit, the father alleged that the mother had engaged in criminal activity and drug use. For reasons which I set out, those concerns on the part of the father were justified.
On 13 March 2020, the mother attended Y’s school to collect her and subsequently failed to return her to the father’s care. The father then filed an Application in a Case seeking the return of Y. Y was ultimately returned to the father’s care on 18 March 2020. On 18 March 2020, the Victorian Department of Health & Human Services prepared a report pursuant to
s 67Z of the Family Law Act 1975 (Cth) (“the Act”). That document has been marked as Exhibit “D” in the proceedings.
On 23 March 2020, orders were made inter alia for the parents to complete urine drug screens within 24 hours and for the mother to disclose her residential address. The father completed his drug screen in accordance with those orders and provided a negative result. The mother submitted results which, for reasons that I explain, I am satisfied had been falsified.
In the period between 24 and 30 March 2020, the mother filed a Contravention Application and an Application in a Case contending that the father had not made the children available. In her supporting affidavit evidence, the mother alleged that the father committed family violence and had fabricated evidence against her. The mother’s applications were ultimately dismissed.
On 8 April 2020, orders were made for the children to have telephone calls with the mother each Tuesday and Thursday. Orders were also made for the mother to undergo a further drug screen and to file and serve an affidavit detailing her place of residence. The mother produced drug screening tests, however, the father raised concerns as to the veracity of those tests. That issue will be considered in greater detail below.
On 11 May 2020, orders were made which included provisions for both parties to undergo further drug screens at a clinic nominated by the Independent Children’s Lawyer (“ICL”). Both parties undertook a screen at a psychology clinic and the results were negative. Those results were subsequently confirmed in documents produced by that pathology service in response to a subpoena from the father.
On 21 August 2020, a Child Responsive Program Memorandum was prepared. That document has been marked as Exhibit “C” in the proceedings.
On 25 August 2020, orders were made for the children to live with the father and spend supervised time with the mother each Saturday from 10.00 am until 2.00 pm. The orders also provided for the mother to undergo a supervised chain of custody hair follicle test. The mother did not comply with that order.
On 8 October 2020, orders were made which provided for the mother’s time with the children to be varied to each alternative Saturday and again for the mother to undergo a hair follicle test. The mother did not comply with that order in respect to testing.
In December 2020, the mother was sentenced to 16 months imprisonment with a non-parole period of 10 months. The mother’s conviction was for offences relating to fraud and obtaining financial advantage by deception.
The mother was released from prison in June 2021. Following her release from prison, the children spent time with the mother as agreed between the parties, including one or two periods of overnight time in November and December 2021.
On 17 December 2021, the parties attended a Court-based family dispute resolution conference but were unable to resolve the issues in dispute.
Following the dispute resolution conference, the father advised the mother that he would not agree to the children spending unsupervised time with her until such time as she submits a clean hair follicle test in accordance with the orders made by the Court on 25 August 2020 and 25 August 2021. The father paid for the mother to undergo such a hair follicle test, however, the mother failed to do so.
From December 2021 until the time of the defended hearing, the father has facilitated the children spending time with the mother as agreed. That time has been spent at his home or in his presence, including occasionally with the mother joining the father and the children for dinner.
The matter was listed for the making of trial directions on 15 February 2022. The mother was not present on that occasion. The matter was nonetheless set down for hearing with a notation that the matter would proceed on an undefended basis if the mother did not make an appearance at the final hearing.
The mother was self-represented in these proceedings. Neither the father nor the ICL objected to the mother’s late filing of an affidavit in support of the orders she is seeking.
Evidence
The documents relied upon by the father were as follows:
·Affidavit of the father filed 8 July 2022;
·Amended Application for Final Orders filed 8 July 2022;
·Notice of Risk filed 28 February 2020; and
·Child Responsive Program Memorandum of Court Child Expert, Ms A, dated 21 August 2020.
The documents relied upon by the mother were as follows:
·Affidavit of the mother filed 30 July 2022;
·Response to Initiating Application filed 30 July 2022; and
·Notice of child abuse, family violence or risk filed 30 July 2022.
The documents relied upon by the Independent Children’s Lawyer were as follows:
·Victorian Department of Health and Human Services s 67Z Response dated 18 March 2020;
·Child Dispute Conference Memorandum of Family Consultant dated 27 March 2020;
·Child Responsive Program Memorandum of Court Child Expert, Ms A, dated 21 August 2020;
·Subpoena to Victoria Police issued on 12 October 2020; and
·Subpoena to Clinic B issued on 12 October 2020.
proposed orders
In circumstances where the ICL agreed with the orders proposed by the father, it is convenient to firstly set out the orders proposed by the mother, which were contained in her Amended Response to Initiating Application filed on 30 July 2022. The proposed orders were as follows:
1The children reside with the applicant father at [C Street, Suburb D].
2The children spend time with the mother as agreed on by parties including but not only on weekends, school holidays, overnights and any other times agreed on by parties so long as appropriate notice is provided in advance.
3The mother be reinstated parenting rights to contact with schools and medical and be included in any schooling events, end of year reports and listed as an emergency contact.
4The mother be permitted to communicate with the school directly and attend any special days within the school as requeted by the children including but not limited to special person days, class cooking days or school excursions.
5Order 3 to appy to childrens medical records and current medical practitioners.
6Any overseas travel is to be discussed and approved by both parents and both parents signatures be required for the purpose of passport applications.
7Once a year for the school holidays, the children stay with their maternal grand parents in Tasmania for all or part of the School Holidays as agreed on between parties to allow the children to their right to having a meaningful relationship with family on bath parents sides.
8 Flights for the children to spend time with the maternal grandparents in Tasmania is to be paid by equal share of cost of flights by both parents.
9.All food and accommodation in Tasmania will be provided for at the grandparents home at [F Street, Suburb G].
(As per the original)
It is to be noted that, significantly and to her credit, the mother was not proposing that there be a change of residence for the children.
Comparatively, the orders sought by the father, which were supported by the ICL, were set out in Exhibit “A” as provided to the Court on 1 August 2022 as follows:
1. That all previous Orders be discharged.
2.That the Father have sole parental responsibility for the children [X] born […] 2007 and [Y] born […] 2011 ("the children").
3. The children live with the Father.
4. The children spend time with the Mother:
a. As agreed between the Mother and the Father in writing;
b.Failing agreement, each alternate Saturday from 10.00am until 2.00pm commencing 6 August 2022, with such time supervised by the Father or his nominee at a location nominated by the supervisor.
5.The children be at liberty to contact the party with whom they are not then residing upon any such request and at all reasonable time
6. That any time spent with their mother is conditional upon the following:
a.The father or his nominee supervising such periods of time at a location that the supervisor nominates.
7.The father and mother are restrained from consuming any form of illicit substance and/or prescription medicine that has not been prescribed to them by a qualified medical practitioner.
8.The Father be and is hereby authorised on behalf of both parents to apply for and sign any forms required to apply for or renew the children's Australian Passports, AND IT IS REQUESTED that the Australian Passport Office and the Department of Foreign Affairs and Trade accept this Order as authority to issue Passports for the children on the Father's sole application.
9.The father shall be permitted to take the children outside of Australia provided he:
a.within 28 days of his departure date, provides the mother with a travel itinerary including the departure and return dates, the destination/s, the approximate dates on which the children will arrive and depart each destination and a telephone number and address at which the children can be contacted;
b.during such travel, makes the children available for communication with the mother party at all reasonable times; and
c. provides the mother with appropriate make-up time (if necessary).
10.The parents immediately inform the other of any illness and/or injury sustained by the children (or either of them) whilst in their respective care and provide particulars of any treatment received by them, together with the name and address of the treatment provider and/or location at which they are a patient.
11.The parents each make available to the other all medication prescribed to the children to administer during their respective time periods.
12.The parents each authorise and direct all schools, educational facilities and extracurricular providers of the children to provide each party (at their request and cost) all information reasonably provided regarding their attendance, including but not limited to notices, information, newsletters, reports and/or photographs.
13.That the Mother only attend such school events, sporting events, training and extra-curricular activities that fall during time she is ordinarily spending with the children.
14.The parents keep each other informed as to their residential address and provide the other with no less than 7 days’ written notice of any change to the same and/or their telephone number.
15.The parties, their servants and/or agents be and are hereby restrained from abusing, insulting or otherwise denigrating the other party, their family, partner and or partner’s family in the presence of the children or in circumstances where that attitude could come to their attention.
16.That the parents are at liberty to provide a copy of these Sealed Orders to any school or educational institution, allied health practitioners or treating doctors for a child or children subject to these Orders.
17. The Independent Children's Lawyer's appointment be discharged.
18.That pursuant to Sections 65DA(2) and 62B 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.
AND IT IS NOTED
A.The parties acknowledge that the child [X] is now 14 years of age and may choose not to spend time with his Mother in accordance with these Orders.
The law – concepts and principles
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act in turn sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As a result of the history of poor communication between the parents, I am satisfied that it would not be in the best interests of the children for there to be an order for equal shared parental responsibility. In circumstances where both parties acknowledge the children should continue to live with the father, I am satisfied that the father should have sole parental responsibility.
In those circumstances, it is not necessary to consider whether orders should be made for the child to spend equal or substantial and significant time with both parents pursuant to s 65DAA of the Act. The task of the Court is to make orders that it considers to be in the best interests of the child having regard to those matters set out in s 60CC of the Act.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
Protection from harm
In Stott & Holgar & Anor [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm and, if so whether steps can appropriately be taken to mitigate against those risks.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(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;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude towards the child and parental responsibilities, of each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and, if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(g)Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
Issues
As noted by the Full Court in Banks & Banks (2015) FLC 93–637 at [48], “in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant.”
By far, the most significant issue in these proceedings is whether the children would face an unacceptable risk of harm in spending unsupervised time with the mother. Determination of that issue fundamentally involves consideration as to whether the mother has been able to address the challenges she has faced with substance abuse. Regrettably, for reasons which I set out, I am satisfied that the mother has been unable to do so and that the children would be exposed to an unacceptable risk of harm in spending unsupervised time with their mother.
Consideration
The desirability of the children maintaining a meaningful relationship
The objects of the Act clearly set out that it is presumed to be desirable for children to have a meaningful relationship with both of their parents unless it would not be in their best interests to do so. Those principles are consistent with the United Nations Convention on the Rights of the Child and fundamental logic and decency.
However, the qualification to which I have referred is an important one which needs to be considered in the context of s 60CC(2A), which directs the Court to prioritise the safety of children above what would otherwise be the desirability of children having a meaningful relationship with a parent who presents a potential risk to them. The principles are explained in the following authorities.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
However, that desirability only operates when there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(Emphasis added)
In McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [122], the Full Court said:
…No doubt in the majority of cases there will be a positive benefit for the child 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.
(Emphasis added)
In McCall & Clark at [117], the Full Court also cited, with approval, comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the enquiry “requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child” (emphasis added).
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering.”
It is axiomatic that an imposition of supervision would impede the ability of the children to develop a meaningful relationship with their mother. Regrettably, for reasons which I set out, I am satisfied that until such time as the mother makes a more concerted effort to address her issues with substance abuse, it would not be “healthy, worthwhile and advantageous” for the children to spend unsupervised time with her.
Issue of risk
As noted, the second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence.
In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
It is now well established that “unacceptable risk” requires assessments of risk of both physical and emotional future harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77 and recent confirmation by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97.
Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].
In this matter, the father gave answers to questions asked of him in cross-examination in a clear, direct and responsive manner. He presented with an absence of malice and his demeanour reflected genuine regret that the circumstances confronting the family are such that the children are unable to spend more time with their mother and without that time being supervised. His affidavit evidence and his oral evidence is internally consistent and plausible and was not diminished in its veracity by cross-examination. I accept the totality of the evidence provided by the father in these proceedings.
Comparatively, the mother was often unresponsive to the questions asked of her and, instead of giving a direct answer, proffered long explanations that had no relevance to the subject matter of the question. While I appreciate it is difficult for a self-represented litigant to be other than an advocate in their own cause even when they are responding to questions, the mother made no genuine attempt to focus on the concern of the cross-examiner which, in turn, reflected the concern of the Court in endeavouring to ascertain the extent to which the mother had confronted issues she has had with substance abuse and whether she has obtained secure accommodation.
The prevarication of the mother in addressing those issues in particular has led me to doubt the credibility of the mother in respect to the extent to which she continues to suffer from substance abuse, her explanations for why she has failed to undergo drug screening tests, whether she has secure accommodation and the nature of criminal charges she is facing, including in respect to drug-related offences.
Accordingly, wherever there is an inconsistency, I prefer the evidence of the father to that of the mother.
In his trial affidavit filed on 8 July 2022, the father attests to a number of occasions where the mother has failed to provide supervised drug test results in accordance with orders of the Court and in accordance with request that have been made of her by the ICL. In that respect, I refer in particular to paragraphs 32, 59, 60, 70, 89, 93, 135, 145 and 160.
Paragraphs 135 and 145 of the father’s affidavit detail the mother’s resistance to undergoing supervised drug screens in relatively recent times. Those paragraphs are as follows:
135.On December 17, 2021, after a mediation session with myself, [the mother], our lawyers and the ICL, I determined that until [the mother] submitted a hair follicle sample and produced a clean test result, that the children should no longer spend unsupervised overnight time with [the mother].
…
145.On February 4, 2022, [the mother] messaged and asked if she could have the kids stay overnight with her that weekend. I requested that she stop asking me to have the kids overnight, because I wasn’t comfortable with it. She told me that she would ‘never stop asking’. There was still no hair follicle test provided.
Although it was filed out of time, no objection was taken to the mother relying upon her affidavit filed on 19 July 2022. At paragraphs 109–111 of her affidavit, the mother explains the reasons for not attending for drug tests as follows:
109.This continued obsession with the same test over and over is just another way [the father] bullies me and controls me and degrades me and that the ICL will continue to go along with it was them enabling him. She said she agreed and could understand my point then gave me her word. That if the independent children’s lawyer was to request one last urine form both parties, we would be required to attend an unknown center of their choice with minimal notice sign papers that the results be released directly to the ICL, that if that screen came back negative that I had her word, there would be no further mention of drugs tests or urines and we would move on with the case.
110.I did as requested and attended the supervised drug screen, it was negative. The ICL did not follow through as promised, to move on with the case and try to resolve some of the actual parenting issues for the sakes of the children.
111.My family attempted to contact the ICL and the applicant in order to book the follicle test for me, however, they were ignored or told it was up to me to pay any amounts incurred at the test centre.
(As per the original)
Also of relevance are paragraphs 113–114 of the mother’s affidavit, where she states:
113.I have no faith in the court that they will suddenly see what is going on Infront of them and go back on the orders they have made. I have not and will not be taking any hair follicle tests. Nor will I be doing any further urine drug screens. It has got me nowhere.
114.a court said to be acting in the best interest of the children that will side with a party and not child protection to me raises red flags. This court has not hesitated in allowing the applicant to take the children away without ever providing any actual examples supported by tested evidence of any incidents occurred that would make me a risk.
(As per the original)
During the mother’s evidence provided in cross-examination, it was accepted that the mother was charged with ‘trafficking in a drug of dependence’ in 2016.[1] It was also admitted that, at a time when the mother remains under a community corrections order,[2] in May 2022, the mother was charged with possession of the illegal substance known as GHB (gamma hydroxybutyrate).[3]
[1] Transcript 1 August 2022, p.42 lines 11-12 and p.60 lines 5-8.
[2] Transcript 1 August 2022, p.55 lines 18-20.
[3] Transcript 1 August 2022, p.55 lines 6-15.
Of great relevance to the consideration of this matter is the mother’s admission as to why she has not attended for drug screens. During the final hearing, I engaged in the following exchange with the mother;[4]
HIS HONOUR: I was sitting here thinking of this. When you said, “I would do anything to be with them,” there is one overwhelming exception that comes in there – other than submit to a regime of hair follicle testing.
[THE MOTHER] I get that, and I will. I will do it. I haven’t because I couldn’t bear the thought of being honest about my situation, because it’s too hard. I don’t want my children to ever know, you know, and saying it out loud like this means that they might, and I don’t want them to know, and I don’t want to be seen as just an addict or useless or whatever, because it’s not what I am, and it’s not what it was. And it’s so terrible; that’s all I am in this case, just a drug addict that needs to be supervised and tested constantly, you know. So, yes, I’ve done the wrong thing, and I haven’t been forthcoming with my addiction struggles and everything else, but – and my criminal record and the particulars that surround it, but please understand I am just mortified at what has happened in my life. I’m so embarrassed about who I am. I feel for my children. I feel for my parents. You know, I’ve let everybody down.
[4] Transcript 2 August 2022, p.101 lines 14-29.
Having regard to that admission by the mother as to why she has failed to attend for drug screening and having regard to the fact that she has been found in possession of an illicit substance in May of this year, I have formed the view that there is an unacceptable risk of the children spending time with the mother due to her continuing use of illicit substances.
Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62. I am satisfied that the risk to the children can be mitigated by the presence of appropriate supervision. The reason for that is self-explanatory. There is an unacceptable risk that the mother may be under the influence of illicit substances during the time that the children spend with the mother. Supervision is necessary to ensure that is not the case and to facilitate the removal of the children from the presence of the mother if it is ascertained that the mother is engaging in dysregulated conduct while under the influence of such substances.
I consider the orders proposed by the ICL and the father for such supervision necessary and appropriate to protect the children from being exposed to psychological harm should the mother be under the influence of illicit substances when the children spend time with her.
Additional considerations
While the issue of risk overwhelms all other potentially relevant considerations set out in s 60CC of the Act, it is still necessary for those matters to be considered to the extent that they are relevant to these proceedings.
I respectfully agree with the summary of relevant considerations as set out in the case outline document filed by the ICL and that the summary is based on an accurate assessment of the evidence presented in the proceeding. By way of summary those submissions were as follows.
The wishes of the children
The children have expressed a desire to spend time with their mother. In December 2021, the children (particularly Y) displayed an innate desire to make up for lost time with her mother.
The nature of the children’s relationship with each of their parents
At paragraph 6 of her case outline, the ICL noted;
On 29 July 2022, a Zoom meeting was conducted with [Y] only. She and the father tested positive for COVID-19 overnight and [X] was staying at a friend’s house to avoid contracting it. [Y] said she had not spent much time with her mother since Christmas 2021. However, on her recent birthday, they spent the day shopping together and, later, the mother, father and [X] went out to dinner together to celebrate. She said that they have enjoyed meals together as a family at the father’s home. She wishes to continue having regular family dinners and for her and [X] to spend one-on-one time with their mother locally, for example, at the park or shops. [Y] wanted to tell her parents that she loves them both very much and enjoys spending quality time with them and [X] as a family.
The accuracy of the ICL’s account of that conversation and it being a representation of the views of Y was not challenged in these proceedings.
The issue of parental capacity and the parents’ discharge of their parenting responsibilities
At paragraphs 7–8 of her case outline, the ICL noted;
7.Since the children have been in his primary care, the father has demonstrated a a [sic] positive attitude towards his role as a parent and his obligations to maintain them. To his credit, it would appear that he has consistently facilitated the mother’s time with the children, including family dinners at his home.
8. The mother has failed to spend consistent or regular time with the children, fulfil her obgliations [sic] to maintain them and/or protect them from harm. She has consistently blamed the father, ICL and the Court for her failure to do so and demonstrated little insight into her own behaviour.
Issues of family violence
In terms of family violence, I have no doubt that the parties’ relationship has, during periods that they lived together and subsequently, been acrimonious. The ICL notes that both parents allege historical family violence perpetrated by the other, including in the children’s presence. They have, at various times, obtained intervention orders against each other.
Despite those historical allegations of family violence, the father has facilitated the mother spending time with the children including, occasionally, joining the father and the children for dinner. This occurred as recently as 13 July 2022 for the family to celebrate Y’s birthday.[5] While presenting as somewhat deflated with the ongoing litigation between the parties and the challenges he has faced, the father presented, as I have indicated, as being without malice towards the mother and genuinely expressed a desire for the children to have a meaningful relationship with the mother consistent with their safety.
[5] Transcript 1 August 2022, p.24 lines 16-22.
Accordingly, while I am satisfied that it is likely that both parties have in the past engaged in conduct that constitutes family violence within the definition of s 4AB of the Act, in more recent times including, most relevantly, in the period subsequent to the mother’s release from prison in June 2021, the parties have been able to spend cordial time together in the presence of each other and in the presence of the children. I am satisfied that such arrangements can continue and will be facilitated by the father within the context of the orders that he proposes.
Additional matters
Overseas travel
In circumstances where the focus of the proceedings was substantially on the question of whether the children faced an unacceptable risk of harm in the care of the mother, understandably, little attention was given to the supplementary orders sought by the father. One significant issue, however, was in respect to the question of overseas travel. The father wishes to take the children on overseas holidays, including in late 2022 to Country H.
The mother indicated that she had no objection to the father taking the children on that holiday and indicated that she would consent to the father obtaining passports for the children. She objected, however, to the father having the power to unilaterally obtain those passports.
Comparatively, the father contends by reference to correspondence with the mother that he has had difficulty in obtaining the mother’s consent. He further contends that there has been a propensity on the mother’s part to seek to use her ability to effectively veto the father obtaining a passport for the children as a negotiating tool in terms of the time that she wishes to spend with the children.
In circumstances where I have accepted the veracity of the father’s evidence, I share that concern. It is not in the children’s best interests that the issue as to whether they should possess passports enabling them to travel overseas, including for an overseas holiday, should become a negotiating tool in respect to the amount of time that they spend with the mother or the circumstances in which that occurs. This is particularly so in the context of these proceedings where I have identified an unacceptable risk exists in the children spending unsupervised time in the care of the mother.
Having regard to those considerations, I am satisfied that it is appropriate to make the orders sought by the father which are incidental to the spend time arrangements including, most relevantly, the order enabling the father to unilaterally apply for a passport on behalf of the children.
Other relevant issues
In addition to the spend time arrangements which I have earlier considered, the remaining orders sought by the father are, in my view appropriate for the following reasons.
Proposed Order 5 appropriately provides for the children to have liberal communication with each parent when they are not in that parent’s company. This is conducive to them maintaining a meaningful relationship with the mother.
Proposed Order 7 restrains the parties from consuming any form of illicit substance and/or prescription medicine that has not been prescribed to them by a qualified medical practitioner. In circumstances where the issue of substance abuse has been a central issue in these proceedings, that proposed order is appropriate.
Proposed Order 10 requires each party to show appropriate courtesy to the other party by immediately informing them of any significant illness or injury sustained by the children. Self-evidently this is desirable and in the best interests of the children.
Proposed Order 11 requires each parent to make available to the other parent the medication prescribed to the children to administer during the respective time periods. While it is contemplated that in the immediate future, the children’s time with the mother will be supervised, that order is appropriate because it leaves open the prospect of the children spending unsupervised time with the mother in circumstances where she is able to address her challenges in respect to substance abuse.
Proposed Order 12 is also appropriate, with the requirement of the parties to facilitate each parent being advised of the children’s educational progress.
Proposed Order 13 restrains the mother from attending the children’s schooling and extracurricular activities other than when the children are ordinarily spending time with her. While understandably of concern to the mother, the orders do not preclude the mother attending such events in circumstances where the children’s time with her will be supervised. The orders also appropriately provide for time to hopefully occur in an unsupervised setting in circumstances when the mother is able to address her substance abuse challenges.
Proposed Order 14 requires each party to keep the other parent informed of their residential address. This is a significant order, in the circumstances of this case, where the mother’s place of residence has, in the past, been ambiguous. Clearly, if the time is to come when the children spend unsupervised time with the mother, it is important for the father to know that their time will be spent at secure and safe accommodation.
Proposed Order 15 is appropriate in that it is an order that restrains either party from denigrating the other or a member of the other party’s family or their partner in the presence of the children or where it could come to the children’s attention.
Proposed Order 16 is also appropriate in that it will enable each parent to provide a sealed copy of these orders to any of the children’s schools or educational institutions, allied health practitioners or treating doctors. Most relevantly, the orders will confirm that the father has, in the circumstances that I have outlined in these proceedings, been allocated sole parental responsibility in respect to major long-term issues which include the issue of the children’s education and healthcare.
Proposed Order 17 will discharge the appointment of the ICL who, it should be recorded, has provided great assistance to the Court and the parties in these proceedings but whose services are no longer required in the context of these final orders.
Conclusion
In one sense, this has been a particularly tragic case. The mother appears to be highly intelligent and articulate and potentially has much to contribute to the lives and welfare of the children. It is regrettable in the extreme that the mother is unable to make that contribution unless and until she addresses her challenges with substance abuse. While it has not been the subject matter of my decision, as I indicated to the mother during the course of these proceedings, it is evident that such a transformation will not occur for the mother whilst she continues to associate with persons who are either users and/or suppliers of illicit substances.
On several occasions during the course of these proceedings, the father indicated his genuine desire for the mother to confront that challenge, in which event he stated that he would have no hesitation in facilitating the children spending more time with their mother.
There are many events that we experience during our lives that can result in a transformation. It is hoped that the outcome of these proceedings will, in the mother’s case, be one such event.
Orders
For all of the above reasons, I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 9 September 2022
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