Halligan & Weldon
[2024] FedCFamC2F 164
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halligan & Weldon [2024] FedCFamC2F 164
File number(s): ADC 988 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – parenting – risks of drug and alcohol use – failure to comply with orders for hair follicle testing – failure to comply with restraints on contact – failure to file trial affidavits – otherwise positive relationship with the children – weight to be given to children’s wishes – whether risks can be sufficiently mitigated by Court orders Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61D, 61DA, 65D, 65DAC, 102N
Cases cited: Grella & Jamieson [2017] FamCAFC 21
Isles & Nelissen [2022] FedcFamC1A 97
Masson v Parsons [2019] HCA 21
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Valverde [2022] FedCFamC1A 133
Division: Division 2 Family Law Number of paragraphs: 100 Date of last submission/s: 8 November 2023 Date of hearing: 6-8 November 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Tredrea Solicitor for the Respondent: Good Country Law ORDERS
ADC 988 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALLIGAN
Applicant
AND: MS WELDON
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born in 2011 and Y born in 2015 ("the children").
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)for six hours each alternate week as agreed with the mother and failing agreement each alternate Sunday from 10.00 am until 4.00 pm;
(b)during school holidays for one additional day each fortnight as agreed and failing agreement the Wednesday following the father's Sunday time, from 10.00 am until 4.00 pm;
(c)on Father's Day from 10.00 am until 4.00 pm;
(d)on Christmas Day in even years from 10.00 am until 4.00 pm;
(e)on Boxing Day in odd years from 10.00 am until 4.00 pm;
(f)on the children's birthdays if a weekend day from 10.00 am until 4.00 pm and if a school day from after-school until 6.00 pm.
(g)Such other time as agreed between the parties.
4.The mother be permitted to suspend the father's time in the long summer holidays for a period of up to 3 weeks in order to take the children on a holiday.
5.The parties be restrained from:
(a)consuming illicit substances for 24 hours prior to or during any period of time spending with the children;
(b)drinking alcohol to excess for twelve hours before or during any time the children are in their care;
(c)discussing these proceedings within the presence of the children or allowing any other person to do so; and
(d)criticising, denigrating or abusing the other parent in the presence of the children or allowing any other person to do so.
6.The father be restrained from bringing the children into contact with Ms B if she is affected by illicit substances or leaving the children unattended in her care at any other time.
7.Both parents be permitted to attend at any school events or extracurricular activities of the children normally attended by a parent.
8.In the event the father obtains a hair follicle test which is negative for all illicit substances the parties are to attend mediation to discuss the possibility of extending the father's time including overnight time.
9.All extant applications save for the father's contravention application filed 8 April 2022 are otherwise dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a parenting matter concerning two children X aged 12 and Y aged nine.
The children live with the mother in City C and spend time with the father as agreed with the mother. This time has essentially been supervised since the father failed to comply with orders for drug testing and an injunction not to bring the children into contact with a former partner.
The mother seeks a continuation of the current arrangement on a final basis.
Despite the father providing a hair follicle test, which was positive for illicit drugs, and his non-compliance with drug testing since that time, the father seeks the Court make orders that the children live in a shared care week about arrangement.
BRIEF BACKGROUND
The parties commenced their relationship in 2008 and separated in late 2017. At that time, they were living in City C, South Australia.
After separation the children lived with the mother and spent regular time with the father.
The parties attended mediation in May 2018 and agreed to the father's time being alternate weekends from Friday to Sunday and each Wednesday and Thursday after school as well as holidays and special occasions.
On 15 April 2020 the Court made orders in similar terms save that the time midweek became overnight each Tuesday and afterschool each Wednesday. On 11 August 2020 orders were made extending the weekend from Friday to Monday. On 29 March 2021 orders were made further extending the weekend from Friday to Wednesday.
On 6 December 2021 orders were made for the parties to both undergo a hair follicle test as soon as practicable.
Despite this, each of the parties subsequently used illicit substances in early 2022, with the father using illicit drugs and the mother also using illicit drugs. However, the mother had completed her hair follicle test prior to use, so her test was clean, whilst the father's test was positive for illicit drugs. There is some dispute about when the father told the mother about the result; however, it appears she was told sometime between mid-February and early March. Nonetheless, the mother does not appear to have been immediately concerned. It was only upon becoming aware that the father's partner/ex-partner Ms B was at his home that she sought to take action in the matter. It is common ground that Ms B has had significant mental health issues and has also been a user of illicit drugs. At trial the father denied she was a current partner but referred to her as a partner on at least one occasion during his evidence.
The mother consequently sought that the father's time be supervised as well as restraints on his use of drugs and alcohol and bringing the children into contact with Ms B. When this was not agreed the mother suspended the father's time. The father consequently filed a contravention application on 8 April 2022. This application does not appear to have been dealt with. I shall return to this in due course.
On 6 May 2022 the mother consented to orders that the father spend time with the children from Friday to Tuesday on the basis there were also orders that the father submit to random urine drugs screens and restraining him from bringing the children into contact with Ms B.
Thereafter in June 2022 the parties attended for a Family Assessment Report with Ms D which was produced in July 2022 ("the Family Report").
Following the May orders, the mother made three requests to the father to undertake random urine drug testing, being on 30 May 2022, 11 July 2022, and 26 September 2022. None of those tests were complied with.
The mother's evidence is that she also saw Ms B's car in the driveway at the father's house on or about mid-2022 and became aware that she was also there on 23 July 2022, 3 August 2022, and 17 September 2022 when the children were in his care.
As a result, in September 2022 the mother unilaterally suspended the father's time.
On 24 January 2023 orders were made for the parties to undergo further hair follicle testing.
The mother complied with her test which was negative for all illicit substances. The father did not comply, despite the mother offering to pay for his test.
As a consequence, on 7 March 2023 orders were made for the father to have supervised time with the children by prior written agreement with the mother.
THE EVIDENCE
This matter proceeded via Microsoft Teams. Whilst at times there were technical difficulties, I am satisfied that this did not ultimately interfere with the running of the case.
The father was self-represented and had not filed a trial affidavit. As a consequence, on the first day of trial he sought an adjournment which was refused.
As the father had not filed his trial material the mother initially sought the matter proceed on an undefended basis. By this she meant without the father being able to rely on any evidence or being able to participate in any way at the trial.
Given the father's attendance at the hearing, pursuant to cases such as Morgan & Valverde [2022] FedCFamC1A 133 I was obliged to give the father the opportunity to make submissions on why the matter should not proceed undefended in the manner proposed by the mother.
In the end I determined that as the father had previously filed material and participated throughout the proceedings in some fashion and because it would not prejudice the mother, that the father ought to be able to rely upon his older affidavits filed in these proceedings.
As it had been agreed at an earlier hearing that there was no requirement for an order pursuant to s 102NA of the Family Law Act 1975 (Cth) ("the Act"), there was no prohibition on the father cross-examining the mother directly.
It has not been possible to include every aspect of the evidence in these reasons. However, I have taken all the evidence into account. Whilst I may not mention something specifically in these reasons, that does not mean I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The only witnesses called in this matter were the parties themselves and the Family Report writer, Ms D.
SHOULD THE COURT MAKE AN ORDER FOR EQUAL SHARED PARENTAL RESPONSIBILITY IN THIS CASE?
Section 61DA of the Act states as follows:
(1)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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)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.
The mother's case is that the presumption of equal shared parental responsibility is rebutted by family violence committed by the father during the relationship. The father in turn alleges the mother has committed family violence against him. For the most part the parties each deny the allegations. However, I do not need to make a finding about family violence, as I am not satisfied it would otherwise be in the best interests of the children for the parents to have equal shared parental responsibility.
Section 65DAC of the Act sets out that where a Court makes an order for equal shared parental responsibility that:
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
What was apparent having heard the evidence is that the parties have an almost complete inability to communicate on a consistent and regular basis. Each party gave evidence that at one time or another they had blocked the other's phone and yet later complained when they themselves were unable to get through. When the have been able to send and receive messages, the communication does not appear to have been very productive.
As a consequence, I intend to make an order for sole parental responsibility and because my orders will provide for the children to remain in the mother's primary care, it is appropriate that this be allocated to the mother.
As such, I do not need to consider whether to make an order for equal time or substantial and significant time but am at large to make orders in the best interests of the children.
WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?
Pursuant to s 60CA of the Act the best interests of a child are the paramount consideration for the Court when making a parenting order.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. The Court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
HOW DOES THE COURT DETERMINE WHAT IS IN THE CHILDREN’S BEST INTERESTS?
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests.
There are two primary considerations. The first of these is the need to consider the benefit to the children of having a meaningful relationship with each of their parents. Secondly, I must consider the need to protect the children from harm.
If there is conflict between those two considerations, then greater weight must be given to the need to protect the children from harm.
There are also a number of additional considerations set out in s 60CC(3).
I have considered each of the matters under s 60CC(2) and (3) however I will only specifically refer to them to the extent that they are relevant to my decision in this matter.
THE PRIMARY CONSIDERATIONS
Do the parties’ proposals provide for a meaningful relationship between the children and each of their parents?
The Full Court of the Family Court of Australia in the case of McCall & Clark [2009] FamCAFC 92 at [115] observed that the Act does not provide a definition of the word "meaningful", however they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as "significant", "important", "of consequence" and "valuable to the child". Meaningful does not however mean optimal.
However pursuant to the High Court decision in Masson v Parsons [2019] HCA 21 at [8] the Court also has the responsibility of:
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.
The orders proposed by the mother are for time as agreed between the parties. They do not specify a default amount of time in the event the parties are unable to reach agreement. The father is concerned about the mother having such control over his time as he does not believe she intends to encourage a relationship between himself and the children. His evidence is that she sees him as a "bad father" and sends him messages calling him a "drop kick father" and tells the children he is a "dead beat dad".
Nonetheless, following the Court making orders on 7 March 2023 that time be supervised and as agreed with the mother, the mother has facilitated time and has done so despite the father attending the visits with beer, smoking throughout, and confronting her about "bad mouthing him" in the community. Although the father asserted that the mother and her family had interfered with his time at the children's sports events there was no evidence before the Court to that effect.
The mother acknowledged to the Family Report writer that the children love the father and that she just wants him to get help. Having heard all of the evidence I accept the mother will continue to promote a meaningful relationship between the children and the father so long as they are not placed at risk of harm in his care.
Are the children at risk in either parties’ care?
The father does not assert that the mother poses a risk to the children. This is consistent with his case that the parties should have week about shared care of the children.
However, the mother's case is that the children are at risk in the father's care for three main reasons:
(1)The father may drink to excess prior to his time with the children or when the children are in his care;
(2)The father may use or be affected by the use of illicit drugs when the children are in his care; and
(3)The father is likely to bring the children into contact with his partner/ex-partner Ms B who has a history of significant mental health issues and illicit drugs use.
The father’s alcohol use
The mother's main concern about the father during the relationship was his excess use of alcohol.
It appears common ground that when X was only an infant the father lost his licence for drink driving. The father justified this on the basis that he had not expected to be driving as the parties had agreed to stay at the event overnight. However, the father still chose to get behind the wheel and at no stage expressed regret for his actions or acknowledged the danger he placed the mother, X, or other road users in.
The mother's evidence also contains numerous examples of times when the father was inebriated including an incident which resulted in the father being hospitalised suffering "serious dehydration arising out of his excessive alcohol abuse".
The father's evidence is that "I am a social drinker and occasionally overindulge". However he maintains that when he has the children with him, he either does not drink or does not drink to excess. He denies being hospitalised due to excessive alcohol use. The father does not accept he has an alcohol use issue, and on the contrary asserts the mother's complaints about him taking the children to the pub and attending there after work for drinks was an attempt to control him.
Nonetheless, it is common ground that the father has continued to bring alcohol to his time with the children, despite it being a live issue in this case. For example, the mother's evidence is that in early 2022 she asked the father to mind the children for an hour and that after that time she located four cans of beer in her bin. Y confirmed to the mother the father had brought two cans of beer with him and drank another two. The father concedes he brought with him two low strength stubbies of beer, and that Y brought him another drink from the mother's fridge.
Furthermore, as recently as 2 October 2023 the father attended his supervised time with a beer. When asked about this in cross-examination his response was "One beer is that illegal?" When asked if it was unwise given the mother alleges he has an alcohol issue, the father said, "Why not - I like to have a beer." The father is either lacking in insight into the concerns the Court may have about his parenting or sees no reason why he should have to prove himself. Having heard all of the evidence it is likely to be the latter, although I cannot dismiss the possibility that his behaviour is an indication of a larger problem with alcohol.
Whilst the father says in an earlier affidavit that he has undergone an assessment in relation to his alcohol use, which he says assessed him at lower risk "requiring no intervention", that assessment appears to have been largely based on self-reporting and that reporting was not necessarily reliable. For example, one question asks whether a relative or friend has been concerned about his drinking. The father's answer is "no" when he clearly has been aware of the mother's complaint about his drinking for many years.
The father’s use of illicit drugs
Each of the parties have at times used illicit substances. The father describes himself as a recreational user of illicit substances which he told the Family Report writer he uses "once in a blue moon". He also told the Family Report writer "if he was at a party and offered something he would 'probably have it'". He did not resile from this statement under cross-examination.
As a consequence, each of the parties was ordered to do a hair follicle test in December 2021. The mother's test was negative however the father tested positive for illicit drugs in results collected in early 2022. The father's evidence is that this was as a result of being offered illicit drugs at a wedding in or about early 2022.
In correspondence attaching his results, the father's solicitor referred to the culture of drug use in City C and asserted both parties were involved. The mother makes reference to this correspondence in her affidavit filed in May 2022 but does not disclose her own use. Rather she refers to her negative test results which were prior to her use. This omission was in my view a deliberate attempt to mislead the Court about her drug use at that time.
However, the mother has complied with further orders for hair follicle testing which have been negative, whilst the father has continually failed to comply with such orders including when the mother offered to pay.
In an affidavit filed in March 2023 the father states as follows:
Over the past 5 years, I have been continually controlled by the respondent from being told I am an alcoholic, (I drank non-alcoholic beer for twelve months), to me attending also attended [E Program], as requested by the respondent through the Family Court and now I am being accused as being a drug addict. I have refused to do this last hair follicle test due to the fact I cannot afford it, my parents can't, as the respondent suggested, and I am sick of the controlling nature of the respondent. I am not a drug addict as your respondent claims.
Despite this, on 19 May 2023 the father's lawyers wrote to the mother's solicitor advising that the father was now going to have a hair follicle test "as soon as it could be arranged" and that the father was "very confident that the result would be negative". However, the father has not provided this test to the mother or to the Court. At the trial, the father gave a myriad of reasons for not having done so including that he had not had time because he had been working in Town F in the months prior to trial and that the test was "a waste of money" although he said that he was now prepared to undergo a test.
Nonetheless, the father's case is that because he only uses illicit substances recreationally there should be no cause for concern. Indeed, he argues there have been no allegations that the children have been harmed in his care since separation or that matters have otherwise come to the attention of the police or the Department for Child Protection. In this regard I also note that the children in the Family Report referred to both parents as safe people for them and did not describe any significant concerns about either of them.
The father also points out that both parties have used illicit substances, including during these proceedings and even on the mother's own evidence, have at times overindulged in alcohol and as such he is being unfairly targeted. There is some merit in the father's position, especially since the mother at least on one occasion timed her use to occur after a test and failed to disclose that use to the Court. On the other hand, the father has been candid about his drug and alcohol use. Furthermore, it appears the mother is more concerned about the father's involvement with Ms B rather than his drug use per se as the mother consented to orders in May 2022, for the children to spend a block of four nights with the father each fortnight, despite the father's positive drug test. Although I accept this was subject to drug testing and not bringing the children into contact with Ms B who the mother asserts is an "illicit drugs addict" rather than a recreational user and thus the mother is concerned the father's drug use may become more habitual if he associates with her.
Bringing the children into contact with Ms B
In the father's affidavit filed in April 2022 he attests to being in an "on again off-again relationship" with Ms B for about 18 months. At that time, he described his relationship with Ms B as follows:
My relationship with [Ms B] is complicated due to [Ms B’s] poor mental health following the breakdown of her marriage a couple of years ago when her son, [G], was a premature newborn baby and she discovered her husband had had an affair with another woman who was pregnant to him. [Ms B] struggles with severe depression for which she receives treatment and, occasionally when she ceases to take her medication, lapses into illicit drug use. [Ms B] and I do not live together but we have a strong friendship. When [Ms B’s] mental health is good, our relationship is good. It deteriorates when [Ms B’s] mental health deteriorates. Even when we are not in a relationship, I want to remain supportive of her and her treatment for her mental health issues.
On 6 May 2022 orders were made by consent restraining the father from bringing the children into any contact whatsoever with Ms B although in the Family Report the father described this order as "an absolute joke”. Furthermore, the mother says she saw Ms B at the father's home in mid-2022 when Y was present, and that Ms B was also there on 23 July 2022, 3 August 2022, and 17 September 2022 when both children were in the father's care. Nothing to the contrary was put to the mother. I accept the mother's evidence in this regard and find that the father has continually brought the children into contact with Ms B in breach of the May 2022 orders.
Furthermore, at trial the father did not seem to understand the issue with the children being in Ms B's presence and went so far as to suggest that she could assist him with their day-to-day care if required.
The father's evidence was as follows:
She [Ms B] is having active treatment for her depressive condition and is complying with doctor's orders I remain willing to ensure that the children do not come into contact with [Ms B] when her mental health is not good and/or when she under the influence of drugs.
Nonetheless, Ms B was not on affidavit and did not attend to give evidence at the trial. There was otherwise no evidence on which to assess the current risk she may pose to the children by virtue of her own drug use or mental health or the types of persons who may frequent her home. Nor can the Court assess what influence she may have over the father's drug use. Although the father says he is only staying with Ms B on a temporary basis, on at least one occasion he referred to her as his partner.
RISK ANALYSIS
Whilst the father has at times overindulged in alcohol, I am unable to find on the evidence that his drinking poses an unacceptable risk to the children. Indeed, despite the father's history with alcohol the mother agreed to orders that provided for the children to spend time with him on six nights each fortnight. Furthermore, she gave evidence about overindulging in alcohol herself although she had made arrangements for the children to be cared for overnight.
In regard to the parties' illicit drug use, the mother has provided a clean hair follicle test and there is no evidence that she has otherwise continued to use drugs since early 2022. However, the father has not only failed to comply with orders for hair follicle testing since that time, on his own evidence he continues to associate with the same friends he used drugs with and candidly admits that he remains a "recreational" user of illicit drugs. At the time of trial, the father was also living with Ms B, a person who on his own evidence continues to resort to illicit substances when her mental health is poor, and during these proceedings he has failed to comply with orders not to bring the children into contact with her.
Taking all these matters into consideration, I find that the children would be at an unacceptable risk of harm in the father's care due to his use of illicit substances, either because he is under the influence of drugs at the time or recovering from drug use. There is also a risk that the father will expose the children to other persons affected by drugs including his friends and Ms B as well as drug traffickers and other criminal associates. Ms B's current state of mental health is also unknown.
Nonetheless, pursuant to Isles & Nelissen [2022] FedcFamC1A 97 I must also determine the magnitude of this risk and whether it can be ameliorated by way of other orders.
The difficulty is that the father has demonstrated that he will breach orders that he does not believe are justified including for drug testing and in relation to Ms B. Furthermore, as the father stated in his last affidavit:
I am not going to be 'told' by the respondent what I can and cannot do when I have my children, as I have constantly stated, they never have and never will be put in any danger.
Consequently, the Court can have no faith the father would abide by restraints such as on his consumption of alcohol or illicit substance or bringing them into contact with others who may be affected by same.
Orders for supervision would appear to be the only guarantee that the father would not be affected by illicit substances or alcohol to excess when the children are in his care and to ensure he would not bring the children into contact with persons such as Ms B who may pose a risk. However, to date the mother has been responsible for supervision. The Court was not provided with evidence of any alternate supervisors; however, I assume that professional supervision is unlikely to be a viable long-term option given limited availability and/or expense. The Court must therefore weigh the magnitude of the risk of unsupervised time against the impact on the children of the supervision, including the limitations this may place on their time, the impact on the mother of having to provide the supervision and the possibility they will be exposed to conflict between the parties.
Furthermore, the Court must also take into account the additional considerations, which I shall turn to now.
THE ADDITIONAL CONSIDERATIONS
The children’s views
The children were both spoken to as part of the Family Assessment process. In the Family Report, X expressed a desire for a week about arrangement whilst Y was happy for the arrangement at that time, which was to spend time with the father from Friday to Tuesday in each alternate week, to remain in place. However, the Family Report writer cautioned against placing too much weight on X's views, which appeared based on what she thought was "fair" and at least in part because she had friends who had lived in a shared care arrangement. Furthermore, Ms D was of the view that there may have been an element of pressure in the assessment. Nonetheless, the children clearly wanted to continue spending significant time with their father and although their current views are not known, there was no real reason to believe this had substantially changed.
The children’s relationship with each parent
It was not in dispute that the children love both their parents and have a positive relationship with each of them.
In the Family Report the following observations were made:
the children demonstrated a genuine level of comfort in their interactions with [Mr Halligan], engaging in frequent eye contact with him while [Mr Halligan] demonstrated a keen interest in what the children were discussing with him, dividing his time between the children. Overall, the observation session was relaxed and enjoyed by both [Mr Halligan] and the children.
The Family Report writer concluded that observations of the children were "unremarkable in that there did not appear to be any obvious differences in the children's interactions and the children delighted in their interactions with each of their parents".
The parents’ ability to meet the needs of the children
Whilst the mother's evidence contained concerns about the father's ability to meet the children's day to day needs, including their attendance at school without appropriate clothes and lunches and attending late, this did not appear to form a large part of her case and the mother appears to have consented to substantial time in spite of any concerns.
The parents’ duty to maintain the children
It is common ground that the father ceased paying child support to the mother in December 2022 and that since that time he has also stopped paying his half of the school fees. The father's evidence was that he had done so because the mother had failed to give him $10,000 which she owed him for a car. The mother in turn argues that this was because she had been left with another debt. I am unable to resolve this issue and it forms no part of my decision in this matter.
The children’s Indigenous heritage
The father's family, on his father's side, are H People from the Region J of South Australia. He describes his grandmother as being someone who was "a strong [H] woman who could speak the language". The father's evidence is that he can speak basic words from their language and that he "tries to stay in touch" with his Indigenous heritage.
The father' argues that by virtue of his limited time with the children they have been deprived of their connection to their Aboriginal culture. Furthermore, he asserts the mother has failed to ensure the children are exposed to their heritage by having regular contact with the paternal family and indeed that the mother called the police when the paternal grandparents attended her home.
The mother's evidence is that she has always encouraged the paternal grandparents, who live some 450km away, to communicate with the children and to spend time with them when they are in City C. She did however take exception to the paternal grandparents attending her home in mid-2022 and seeking to take the children away with them. She was concerned that they were likely to bring the children into contact with the father whose time she had suspended. She says the paternal grandparents refused to leave and abused her and that the police had to be called.
I am unable to determine what precisely occurred in mid-2022. However, it is not in dispute that on other occasions the mother invited the grandparents to her home for dinner and to attend a special occasion, albeit she has resisted them spending time with the children unsupervised for reasons already set out herein. She was also reluctant to allow the children to attend their grandmother's home during school time. However, the father did not assist matters by messaging the mother after she sent photos to the grandparents of Y playing his first sports game as follows "don't send my parents pictures of the kids when you don't allow them to see to see them when they are here".
Counsel for the mother also argued that the father had to show not only that the children had Indigenous heritage but that they took part in existing practices or traditions that may be affected by any orders made. However, regardless of the children's past or current involvement, I accept that the children would likely benefit from being exposed to the traditions and culture of the H people and that to fully enjoy these aspects of their heritage they would likely need to spend time in that region. However, this is a matter that must be balanced against the other aforementioned considerations.
ANALYSIS
This is a difficult case because it would appear that the children have a loving connection with their father and enjoy their time with him. They also spent significant time with the father post-separation, building up to an almost equal shared arrangement. It is also clear that both parents have at times indulged in illicit substances during these proceedings. Furthermore, there are no allegations the children have actually been exposed to the father's illicit drug use since separation. However, I have found on the evidence that the children are at unacceptable risk of harm of being exposed to the drug use of the father or other persons he associates with.
Not surprisingly, the Family Report writer when cross examined expressed concerns about the father's time in circumstances where he may be continuing to use illicit drugs but was unable to make specific recommendations without further clarity around that use. Ms D merely recommended that a relationship with the children be maintained, including through the father's attendance at the children's extracurricular activities pending further information.
However, the magnitude of the risk is not so large that it would justify supervision of time, given the negative impact on the children of the supervision itself. In particular it will limit the risk of the children being exposed to conflict between the parties as well the indirect impact on them of their mother being the supervisor.
I see no reason why this time should not be fixed on a day each alternate weekend. The parties and children will all have certainty about the arrangement, and this will reduce the requirement for any regular communication.
I therefore propose to make orders that the father spend time on one day each alternate weekend for a six-hour period, as agreed with the mother, and failing agreement from 10.00 am to 4.00pm on the Sunday. In the event the father is to be away for work, he is to notify the mother no later than two weeks prior to the time.
I will also make orders for the father to spend a fixed six-hour period on special occasions including the Christmas period, on Father's Day and the children's birthdays.
During holidays the father should spend an additional day in each alternate week of the holidays save that the mother be able to suspend his time for up to 3 weeks in order to take the children on a holiday.
In addition, the father can attend any events either at school or extracurricular events normally attended by a parent.
In terms of the restraints sought by the mother, as each parent has used illicit substances and there is evidence to suggest that each party has been involved in denigrating the other, I propose to make those orders as mutual orders. In regard to alcohol, neither party should drink alcohol to excess during their time with the children or for twelve hours prior. That should ensure they are each in a sufficient state to be able to care for the children in their time.
In regard to Ms B the father will be restrained from bringing the children into contact with Ms B if she is affected by illicit substances. Furthermore, given the lack of clarity around her mental health generally, the father will be restrained from leaving the children unattended in her care at any other time. Whilst there is an expectation the father will comply with all of these restraints and indeed the Act sets out the possible penalties if he does not, given the history of this matter I have assessed the risks of non-compliance and weighed those matters against the other considerations when coming to my decision in this matter. For want of doubt, there is no restraint on the father bringing the children to Ms B's home or on his extended paternal family spending time with the children during the father's time, subject to compliance with the other restraints in this matter. Given the father is to have limited time with the children the reality is he may well choose to remain living with Ms B and on balance it is better for the children to be able to see him in a home environment.
I am not going to make any further orders for drug testing. The father has had ample opportunity to comply with orders and has chosen not to do so. However, I will make an order that in the event he obtains a hair follicle test which is negative for all illicit substances then the parties are to attend mediation to discuss the possibility of extending the father's time, including to overnight time.
Finally, I note the parties have at various times filed applications in a proceeding in this matter. At least one of those applications has not been formerly dismissed however for completion I propose to dismiss all extant applications, save for the father's contravention application filed on 8 April 2023 which it appears has never been heard. It is unclear to me whether the father is aware that application is outstanding and if so whether he still wishes to pursue it. Given the nature of a contravention application and that the father is self-represented he ought to be given the opportunity to address the Court in this regard.
Otherwise, for all the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 14 February 2024
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