Hackford & Alameda

Case [2024] FedCFamC1F 628

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hackford & Alameda [2024] FedCFamC1F 628

File number(s): ASC 17 of 2019
Judgment of: BERMAN J
Date of judgment: 19 September 2024
Catchwords:

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the mother seeks orders to share the joint decision-making – Where the father opposes the same – where the parties have been in high conflict litigation for five years – Where there is no co-parenting relationship – Where the parties are unable to communicate – Where the child previously lived with the mother – Where the mother was unable to take the child to school or provide appropriate levels of dental and hygiene care – Order for the father to have sole decision making.

FAMILY LAW – CHILDREN – With whom a child spends time with –  Where the child lives with the father and spends supervised time with the mother – Where the mother seeks orders for unsupervised time – Consideration of best interests – Where the child wishes to spend more time with the mother – Where the father supports the relationship provided it is safe – Consideration of risk – Where the mother uses illicit drugs – Consideration of whether the mother’s parenting capacity when using illicit drugs – Whether the Court can be satisfied that when the child is in the mother’s care her parenting will not be compromised by illicit drug use – Consideration of whether the mother can ensure the child attend school – Where the risk can be ameliorated by appropriate orders – Orders made for the mother to spend unsupervised time with the child on a condition of urinalysis testing results.

Legislation:

Family Law Amendment Act 2023 (Cth)

Family Law Act 1975 (Cth) Div 12A, ss 60CA, 60CC, 61D, 69ZT, 70NEB

Cases cited:

Harridge & Harridge [2010] FamCA 445

L v T (1999) FLC 92-875

N & S & The Separate Representative (1996) FLC 92-655

Division: Division 1 First Instance
Number of paragraphs: 264
Date of hearing: 6,7,8, 26 & 28 August 2024
Place: Heard in Alice Springs and Darwin, delivered in Adelaide
Counsel for the Applicant: Ms Giacomo
Solicitor for the Applicant: Darwin Family Law Pty Ltd
Counsel for the Respondent: Mr Casey
Solicitor for the Respondent: Jones Elferink Barristers & Solicitors
Table of Corrections
30 September 2024 In paragraph 256 the words “suspended for a period of three months and” are replaced with “daytime only with overnight time to” and adding at the end of that sentence after the words urinalysis tests “to be taken not less than one week apart and not more than two weeks apart.
30 September 2024 In paragraph 262 the word “unsupervised” is replaced with “overnight”.

ORDERS

ASC 17 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ALAMEDA

Applicant
AND:

MS HACKFORD

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

19 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The orders dated 13 November 2020 be discharged.

2.Mr Alameda (“the…

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Hackford & Alameda [2024] FedCFamC1F 628
Case
[2024] FedCFamC1F 628
Decision Date

CaseChat Overview and Summary

In the matter of Alameda v Hackford, the primary dispute between the parents concerned the allocation of parental responsibility and the conditions under which the child would spend time with the mother, given her history of illicit drug use. The father opposed the mother's request for unsupervised time with the child due to concerns about her drug use and its potential impact on her parenting capacity. The mother, while acknowledging her drug use, argued that it did not interfere with her ability to care for the child and sought more unsupervised time.

The court needed to decide whether the mother's illicit drug use compromised her parenting capacity and whether her drug use posed a risk to the child's well-being. Additionally, the court had to determine the conditions under which the mother could spend unsupervised time with the child, including the necessity of drug testing. The court also had to consider the child's best interests in terms of time spent with each parent and the potential risks associated with the mother's drug use.

The court ruled that the father would have sole parental responsibility for making long-term decisions about the child. It was determined that the mother's drug use posed a risk to the child, and thus, unsupervised time would be subject to strict conditions. The court ordered that the mother could spend unsupervised time with the child provided she passed two negative urinalysis tests taken within a specific timeframe. If the mother failed to comply with the drug testing requirements or tested positive, her unsupervised time would revert to supervised conditions. The court also ordered that the mother consult with a psychologist and attend therapy sessions. Handovers were to occur at a specified location, and the father was allowed to take the child on limited community outings during the mother's time. Communication between the parents was to be conducted via a designated app, and both parties were restrained from using illicit substances in the presence of the child.

Orders

Orders of the court

ASC 17 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ALAMEDA

Applicant

AND:

MS HACKFORD

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

19 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The orders dated 13 November 2020 be discharged.

2. Mr Alameda (“the father”) have sole parental responsibility for making decisions about long term issues for X born in 2018 (“the child”) and that in exercising sole parental responsibility the father shall:

(a) Use his best endeavours to advise Ms Hackford (“the mother”) in writing via “Our Family Wizard” app or such other parenting app as the parties may agree of the decision intended to be made;

(b) Seek the mother’s written response in relation thereto;

(c) Consider by reference to the best interests of the child, any such response prior to making any such decisions; and

(d) Then, if the parties are unable to reach an agreement regarding the decision to be made, the father shall have the ultimate say and shall advise the mother in writing as soon as reasonably practicable of the ultimate decision.

3. The child live with the father.

4. The child shall spend time with the mother as follows:

(a) For a period of not less than six (6) weeks, each Saturday from 10.00 am to 5.00 pm commencing on 21 September 2024;

(b) Subject to order 4(a) PROVIDED THAT the mother has undertaken two (2) urinalysis tests which show a negative result for all drugs of abuse with such tests to be taken within not less than one (1) week apart and not more than two (2) weeks apart, then for a minimum period of four (4) months, the child shall spend time with the mother each alternate weekend from the conclusion of school on Friday (or 2.30 pm if a non-school day) to Sunday at 10.00 am;

(c) Subject to order 4(b) PROVIDED THAT the mother has undertaken a urinalysis test which shows a negative result for all drugs of abuse then the child shall spend time with the mother as follows:

(i) each alternate weekend from the conclusion of school on Friday (or 2.30 pm if a non-school day) to the commencement of school on the following Monday (or 4.00 pm if the Monday is a non-school day or public holiday);

(ii) During the Northern Territory gazetted school holidays:

A. For the first school holiday period in 2025, a block of four (4) nights as agreed between the parties and failing agreement from 10.00 am on the first Monday of the school holiday period to 10.00 am the following Friday;

B. For each school holiday period thereafter, each alternate week from 10.00 am Monday until 10.00 am the following Monday commencing the first Monday of each school holiday period.

5. The mother shall ensure that the child attends her extra-curricular activities as nominated and advised by the father.

6. The child shall spend time with the mother on the following days of significance:

(a) On the child’s birthday if a non-school day and if the child is not otherwise spending time with the mother, from 9.00 am to 1.00 pm;

(b) On the mother’s birthday if the parties are in the same location, and if the child is not already spending time with the mother, from 9.00 am to 1.00 pm;

(c) On Mother’s Day, if the child is not otherwise spending time with the mother from 9.00 am to 1.00 pm PROVIDED THAT the mother’s time will be suspended from 9.00 am to 1.00 pm on Father’s Day;

(d) In all odd numbered years, on Easter Thursday after school (or 2.30 pm if a non-school day) until 1:00 pm on Easter Monday; and

(e) In all odd numbered years, from 1.00 pm on Christmas Eve to 1.00 pm the day after Boxing Day.

7. Notwithstanding these orders the child shall spend time with the father and if applicable the mother’s time shall be suspended as follows:

(a) In all even numbered years from Easter Thursday after school (or 2.30 pm if a non-school day) until before school on Easter Tuesday;

(b) In all even numbered years from 1.00 pm on Christmas Eve to 1.00 pm the day after Boxing Day.

8. The mother shall:

(a) Continue to consult with B Service for a minimum of six (6) therapeutic sessions to commence as soon as practicable;

(b) Obtain a Mental Health Care Plan to enable her attendance on B Service; and

(c) Inform the father of her attendances on her treating psychologist and if a report is generated, at her election, the mother will forward a copy of the report to the father.

9. The child’s time shall revert to time in accordance with order 4(a) until the mother’s compliance with order 4(b) herein should any of the following apply:

(a) The mother fails to comply with the timeframes for undertaking urinalysis drug testing, unless as may be agreed between the parties;

(b) The mother fails to provide the test results of the urinalysis drug testing;

(c) A test shows a non-negative or positive result for illicit substances;

(d) The testing laboratory gives any indication that the sample has been diluted or otherwise interfered with; and

(e) The mother fails to complete a minimum of six (6) therapeutic sessions with her nominated psychologist.

10. Handovers shall be conducted at D Contact Centre unless the child is attending school in which case the child shall be collected from school at the specified handover times.

11. For the purposes of facilitating handover, the mother (or her agent) is to drop the child off at D Contact Centre at the commencement of the father’s time with the child with the D Contact Centre care workers to conduct handover to the father (or his agent) and the mother is to leave D Contact Centre prior to the handover being conducted; PROVIDED THAT the parties are at liberty to agree a different handover venue.

12. The father be permitted to take the child to community on no more than four (4) occasions per year during the mother’s time with the child and he shall provide the mother with the following:

(a) Not less than twenty-one (21) days written notice of his intention to take the child to community;

(b) Any contact details for the child during this period; and

(c) If the child will otherwise be spending time with the mother the father shall arrange for the child to spend make up time within three (3) months of the mother’s time being suspended.

13. The father and the mother PROVIDED THAT she in in compliance with order 4(c), are permitted to take the child on a holiday interstate or outside of the Commonwealth of Australia PROVIDED THAT:

(a) They shall each provide at least twenty-eight (28) days written notice to the other of the intent to take the child on a holiday, together with a copy of the relevant tickets, proposed itinerary, address and telephone details where the parent and the child may be contacted while on holidays and, for travel outside of the Commonwealth of Australia, a “comprehensive” travel insurance for the child;

(b) Pursuant to s 65Y of the Family Law Act 1975 (Cth) and provided the father and/or the mother have complied with the appropriate notice, each of the parties are at liberty to remove the child from the Commonwealth of Australia;

(c) The father is permitted to apply for an Australian Passport for X born in 2018 without the consent of the mother provided that if pursuant to these orders the mother is permitted to take the child out of the Commonwealth of Australia, the father will not capriciously withhold the child’s passport and will provide same to the mother within fourteen (14) days of the proposed date of travel PROVIDED THAT the mother returns the child’s passport to the father’s care within forty-eight (48) hours of the child’s return.

14. The child have Facetime communication with the mother on one (1) occasion per week on a day and time to be agreed between the parties and failing agreement, on Wednesday at 5.30 pm, however the child is permitted to communicate by electronic means with each of the parties at any time as may be reasonably requested by her and the parent she is then living with shall do all things necessary to facilitate such communication occurring.

15. Except in the case of emergency, all communication between the parties shall be via “Our Family Wizard” app or such other parenting app as may be nominated by the parties and communication should only be in relation to the child.

16. In the event that the child suffers a serious injury or illness or is hospitalised, then the party who has the child’s care at that time, shall notify the other party promptly and provide details of the treating doctor and/or like professionals.

17. In the event that the child requires medical treatment, the parent caring for the child is to immediately advise the other parent via “Our Family Wizard” app or such other parenting app as the parties may agree within twenty-four (24) hours of the treatment being received and shall include details of the medical treatment provided and any ongoing medication that is required by the child.

18. The parties shall be otherwise restrained from communicating via text message or telephone except in accordance with these orders.

19. Each party shall keep the other informed as to their address, phone number and email address and notify of any change within twenty-four (24) hours.

20. Each party shall comply with the child’s treating doctors directions and all prescribed medication shall be given to the other parent at changeover.

21. The parties shall ensure that the child shall attend school every day unless due to illness, and if the child is unable to attend school due to illness, then a medical certificate is to be provided to each party if so requested.

22. Both parties are entitled to attend daycare, school or extra-curricular events that are commonly attended by parents and both parents are to keep each other informed of such events.

23. Each party is able to receive information and/or records from any doctors, carer, teacher, hospital, childcare institution, and any social, sporting or recreational organisation with respect to the child.

24. Each party is able to contact the daycare, school and/or medical practitioner’s where the child attends and obtain access to information and reports with respect to the child at that parent’s sole expense.

25. The parties are restrained and injunctions are granted restraining each of them from:

(a) Physically disciplining the child or otherwise using physical force against the child;

(b) Exposing the child or allowing the child to be exposed to family violence;

(c) Speaking negatively to the child about the other or that other’s family and allowing the child to remain in the presence of any other person who may be speaking negatively about the other party or the family;

(d) Using illicit substances or drugs of abuse in the presence of the child and for a minimum period of twenty-four (24) hours prior to the child coming into a party’s care or from allowing the child to remain in the presence of any other person who may be using illicit substances or drugs of abuse; and

(e) Attending upon the other parent’s residence.

26. The mother is restrained and injunction granted restraining her from leaving, or permitting the child to have contact with or spend time with Ms C.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The proceedings were commenced in the Town F Registry and then completed remotely from the City G Registry.BACKGROUND The father is 29 years of age and the mother is 26 years of age. The parties commenced a relationship in 2015 and separated on either 26 December 2018 or in February 2019. The circumstances of separation were traumatic with each of the parties alleging conduct by the other consistent with family violence. At separation, the child lived with the father for three months and spent sporadic time with the mother. In March 2019, the parties reached agreement to equally share the care of X however, this arrangement ceased in about June as the mother considered that an equal care arrangement was not appropriate given that the child was under one year old. On 25 July 2019 the parties entered into a Parenting Plan that provided for the child to live with the mother and spend two nights per week with the father. The interpersonal relationship between the parties was complex with the mother presenting at times with suicidal intention and/or ideation. In October 2019 the father commenced a relationship with his current partner, Ms H (“Ms H”). From October 2019 the father contends that the mother’s use of illicit drugs had escalated to a point that he considered interfered with her ability to provide adequate and proper care for the child. The mother does not deny illicit drug use but rejects the father’s assertion that it interferes with her ability to provide for the child’s necessary care. On 24 October 2019 the father withheld the child on the basis of his belief that the mother’s illicit drug use was unrestrained, that her conduct was indicative of poor mental health and that she posed a risk to the child. The mother considered that the father’s focus on her alleged illicit drug abuse was unnecessary and without foundation given that there had been involvement by the police with no evidence of drug use. It is apparent that the relationship between the parties had reached a low ebb given the concession by the mother that on 22 October 2019 she sent a text message to the father stating “Fuck off before you make me hurt myself again!!! You lowlife cunts!!!”. The retention of the child by the father prompted the mother to commence proceedings on 28 October 2019 with the father filing his Response on 8 November 2019. On 2 April 2020 the mother underwent a urinalysis drug test which returned a possible positive result for illicit drugs. Thereafter, there was a focus by both the father and by orders of the Court relating to a requirement that the mother undertake regular urinalysis drug tests. Intervention by J Services on 1 June 2020 was prompted as a result of an allegation that the mother may have resorted to smoking illicit drugs. Between June and November 2020 there was intensive focus on matters pertaining to the mother’s mental health and stability but also the extent to which she continued to use drugs in particular, illicit drugs. A number of tests involving both hair follicle analysis and urinalysis were undertaken.

Evidence

Evidence Before The Court

Neither party spoke in favour of the application of the excluded parts of the Evidence Act and as such, no order was made.THE EVIDENCEThe father The father relied upon his trial affidavit and affidavit in reply. The father confirmed that the focus was in respect of the mother’s illicit drug use, which he considered excessive and as having the potential to place the child at risk, together with the mother’s inability to comply with court orders and to facilitate the transition of the child between the parties with the least emotional consequence. The father conceded that he did use illicit drugs both before he met the mother and at the start of their relationship. He was categorical in his denial of current illicit drug use. At the time, the parties had the advantage of the notes of D Contact Centre outlining the observed interaction between the mother and the child but also noting engagement with each of the parties for the period 21 February 2023 to 21 December 2023. To his credit, the father did not seek to diminish the significant attachment evident between the mother and the child and repeated his position that unsupervised time with the mother was to the benefit to the child provided that the mother could reduce what the father considered was a chaotic lifestyle and remain drug free. The manner in which the child transitioned between the parties was an issue of concern at the time of the 2020 final orders. At that stage the child was two years of age. As at the date of the current trial, the child was six years of age. The father did not accept that the mother was prepared to facilitate a ready handover but rather that she would prolong the arrangements by not being prepared to release and relinquish the child back into the father’s care. The difficulties experienced by the child at handover were intermittent. Whilst there were times that the transition went smoothly, overall the father considered that the child expressed reluctance to return to his care and that this was exacerbated by the mother seeking to elongate the process. It is likely that following the mother entering into a Bond to be of good behaviour and obey court orders, the handovers have become less problematic. The father agreed that at times he listens to the calls between the child and the mother. He does so because he says that X feels uncomfortable. The father presented as a taciturn witness and whilst I consider his evidence to be reliable, it was apparent that he did not hold the mother in high regard. The father did not impress as having any confidence that the mother would be able to comply with the regime of drug testing and therapeutic intervention.Ms H Ms H’s (“Ms H”) primary evidence was contained in her affidavit filed 30 April 2024. Ms H and the father met in 2019 and commenced cohabitation two months later. The father and Ms H have a child of their relationship now aged two years old. The father and Ms H are in a committed relationship as evidenced by their purchase of a family home.

Decision

Reasons for decision

The thrust of the amending legislation that came into effect on 6 May 2024 was intended to focus the Court as to the needs of the child rather than the parties.CONCLUSION I propose to make orders for parental responsibility as proposed by the father in his Amended Minute of Order (Exhibit “2”). There is no contest to the child remaining in the primary care of the father. I propose to order that for a period of six weeks, the child shall spend unsupervised time with the mother each Saturday from 10.00 am to 5.00 pm. Orders will be made restraining the mother from consuming illicit drugs for any period commencing 24 hours before the child comes into her care and during the period of actual care. Thereafter, and subject to the mother presenting two clear urinalysis tests to be taken not less than one week apart and not more than two weeks apart, the mother’s time shall be extended during school term time to each alternate weekend from after school (or 2.30 pm) on Friday to Sunday at 10.00 am and then, for block periods during school holidays as promoted by the father. The mother’s time during school terms shall increase to the mother returning the child to school on Monday morning (or 4.00 pm if a non-school day). The parties are broadly in agreement as to matters relating to the child spending time with each of the parties on special occasions including Mother’s Day, Father’s Day, the birthdays of the parties, the child’s birthday, the Christmas and Easter periods. Should either or both of the urinalysis tests show a positive result for illicit drugs then the mother’s time with the child shall be daytime only with overnight time to resume only upon the mother presenting two negative urinalysis tests to be taken not less than one week apart and not more than two weeks apart. The parties are agreed that all handovers that do not take place at the child’s school are to occur at D Contact Centre. The orders promoted by the father in terms of communication are consistent with the evidence. I propose to put in place injunctions mutually sought by the parties including that the mother is restrained from leaving or permitting the child to have contact with the maternal grandmother Ms C unless consent is given by the father. I do not propose to order that the parties attend upon any parenting course or program as sought by the mother. The parties are well aware of the circumstances, and I consider that their separate positions are likely to be well entrenched. The mother proposes that she continue to consult with B Service until such time as the psychologist considers it to be no longer necessary. As considered, there is significant advantage to the child if the mother voluntarily seeks therapeutic assistance. I do not propose to force the mother to seek psychological intervention but rather accede to the order that the mother seeks. Presumably it is of sufficient importance that I propose to require the mother to attend six sessions with Ms S or other suitably qualified professional as a further precondition to the mother commencing overnight time. I do not propose to require the mother to continue psychological intervention at the behest of the psychologist.

Ratio Decidendi

Legal Principle Established

I consider that the determination as to whether an order should be made under s 61D(3) of the Act concerning the allocation of responsibility for major decision making is informed and to be determined by a consideration of the best interests of the child consequent upon the application of the considerations in s 60CC.PARENTING CONSIDERATIONSIs the child at risk? In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (1996) FLC 92-655, and adopted the following list of inquiries with respect to risk assessment and analysis:-73. …(1) What harmful outcome is potentially present in this situation?(2) What is the probability of this outcome coming about?(3)What risks are probable in this situation in the short, medium and long term?(4)What are the factors that could increase or decrease the risk that is probable?(5)What measures are available whose deployment could mitigate the risks that are probable?(B Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569). Each of the parties allege that the relationship was marred by family violence. It is however conceded by each of the parties and inherent in the orders that they seek that the relevance of their separate allegations of family violence may provide some understanding as to the high level of mistrust and the current dysfunctional interparental relationship. There is scant evidence as to the extent to which family violence was perpetrated. Each of the parties focus on other aspects of their relationship. For his part, the father considers that the mother has a continuing problem with the consumption of illicit drugs to a level that is not recreational but rather likely to adversely impact upon her parenting capacity. The risk can be ameliorated by the child’s time with the mother being the subject of strict supervision. For her part, the mother contends that the father has always attempted to undermine her relationship with the child and whilst she admits that at times her consumption of illicit drugs was excessive, she says that it was the combination of the breakdown of the relationship that exacerbated a psychological frailty which pre-existed from her childhood experience. There has been an understandable focus in both Consent Orders and also orders made after the contested hearing as to the need for the mother to address her purported excess illicit drug use and mental health issues that apparently were seen as important in the mother being able to support the easy and less emotional transition of the child between the parties. The mother has not been diagnosed with a defined mental health condition. Dr U considered that whilst some aspect of the mother’s presentation might satisfy in part some of the diagnostic criteria for a borderline personality disorder, such a diagnosis could not be made. The mother was considered to have personality issues that Dr U considered may have their genesis in unresolved family trauma.